«-•/»«/. 




mass •*R-A6 ; 

Book AlMZ 



Gopyrightls 10 



.10 I 0) A 



COPYRIGHT DEPOSIT. 



LAW 



AS TO 



Cemeteries, Undertakers, Em- 
balmers and Burials 



IN THE 



STATE OF NEW YORK, 



WITH 



Statutory Amendments down to and 
including the Session of 1901, 



ZB-5T 



JOHN FOW 




Albany, N. Y.: 

W. C. LITTLE & CO., 

Law Book Publishers. 

1901. 



fH€ LIBRARY OF 
CONGRESS, 

Two Copies Received 

DEC. 4 1901 

.Copyright entry 

CLASS ^XXcx No, 

COPY B. 






Copyright, 1901, 
By W. C. LITTLE & CO. 



PREFACE, 



The object of this compilation is to present, 
as briefly as possible, the entire body of law of 
the State of New York as to cemeteries, under- 
takers, embalmers and burials. It includes the 
substantial parts of all the unrepealed laws of 
the State down to and including the session of 
1901, as also all the case law of the State, as well 
as prominent decisions of the other States, re- 
lating to the subject. As it is intended for the 
use, not only of lawyers, but of cemetery trus- 
tees and superintendents, religious corporations, 
clergymen, town, village and city officials, under- 
takers, embalmers, physicians, dealers in monu- 
ments and cemetery structures, lot owners, and 
their friends and relatives, etc., etc., the use of 
technical terms has been avoided. 

A useful collection of forms has been added. 

May 29th, 1901. 



CONTENTS, 



CHAPTER. PAGE. 

I. Cemeteries defined 1 

II. Kinds of cemeteries 4 

Public cemeteries 4 

Cemetery associations 6 

Cemeteries controlled by religious corpora- 
tions or churches 6 

Private and family cemeteries 7 

III. Incorporation of cemeteries 8 

IV. How lands are acquired for cemeteries .... 20 

Eminent domain 20 

Conveyance 26 

Prescription 39 

Dedication 39 

V. Government and management of cemeteries. 42 
VI. Sale, mortgage, and lease of cemetery prop- 
erty 54 

Vll. Property in cemetery lots 62 

VIII. Transfer of cemetery lots 66 

IX. Opening highways through cemeteries 76 

X. Taxation of cemeteries 79 

XI. Desecration of cemeteries 84 

XII. Liens on monuments, gravestones and ceme- 
tery structures 89 

XIII. Cemeteries as nuisances 91 

XIV. Abolition of cemeteries ; 93 

XV. Undertakers, embalmers, and burials 96 

v 



CASES CITED. 



PAGE. 

Adler v. Lumley 90 

Angel v. Methodist Protestant Church 61 

Appeal of Gumbert 27 

Beattie v. Kurtz 80 

Bennett v. Culver 27, 94 

Bennett v. Washington Cemetery 27 

Bessemer Land and Improvement Co. v. Jenkins . . 

84, 85 

Board of Health v. East Saginaw 87 

Brendell v. German Reformed Corporation 27 

Brick Presbyterian Church 62, 85, 91, 102 

Brooks v. Taintor 89 

Buffalo City Cemetery v. Buffalo 62, 79, 80 

Cemetery Assn. v. Meninger 3 

Coates v. New York 64, 91 

Cochen v. Methodist Protestant Church 43 

Com. v. Goodrich 98 

Com. v. Mt. Moriah Cem. Assn 62 

Com. v. Wellington 5 

Concordia Cem. Assn. v. The Minn. & N. W. P. R. 

Co 2 

Conger v. Treadway 63 

Conger v. Weyant 63 

Coppers Case 104 

Craig v. First Presbyterian Oh 02 

Dwenger v. Geary 65 

vii 



viii Cases Cited. 

page. 

Edwards v. Stonington Cem. Assn 21 

Evergreen Cem. Assn. v. New Haven 77 

Ferrin v. Myrick 105 

Fore v. Hoke 3 

Fork Ridge Baptist Cemetery Assn. v. Ridge 20 

George v. Cypress Hill Cemetery 47 

Gilbert v. Buzzard 1 

Griffin v. Condon 103 

Gumbert's Appeal 64 

Hook v. Joyce 39 

Hunter v. Trustees of Sandy Hill 39, 40, 93 

In re Donn 104 

In re Twenty-second St 77 

Jeffries v. City of Pittsburgh 86 

Jenkins v. Andover 3 

Johnson v. Marinus 103 

Johnstown Cemetery Assn. v. Parker 46 

Kemp v. Wiekes 7 

Kessell v. Hupen 105 

Lantz v. Buckingham 66 

Lay v. State 3 

Matter of Albany St 76 

Beekman St 102, 108 

Board of Street Opening 64, 76, 77 

Deansville Cem. Assn 21, 25 

Miller 105 

O'Rourke 63 

Rooney 105 

McCue v. Garvey 103 

McGuire v. St. Patrick's Cathedral 63, 65 

Metaire Cem. Assn. v. Board of Assessors 2, 3 

Methodist Prot. Church of Cincinnati v. Laws 27 

Mitchell v. Thorne 85, 86 



Cases Cited. ix 

PAGE. 

Mowry v. City of Providence. 39 

Palmer v. Cypress Hill Cemetery 32 

Patterson v. Patterson 105 

People v. Coppers 104 

People v. Davren 81 

People v. Pratt 57, 81, 82, 92 

People v. St. Patrick's Cathedral 65 

Pierce v. Spoff'ord 40 

Rappalzea v. Russell 105 

Reed v. Stouffer 26 

Renihan v. Wright 97 

Rhodes v. Brandt 87 

Richards v. Northwest Protestant Dutch Ch....62, 91 

Rosehill Cemetery Co. v. Hopkinson 43 

Rosseau v. City of Troy 94 

Schoonmaker v. The Ref. Prot. Dutch Ch 40, 41 

Schroder v. Wanzer 67 

Secor v. Secor 103 

Seymour v. Spring Forest Cem. Assn 34 

Smith v. Thompson 85 

Snyder v. Snyder 104 

Schier v. Trinity Ch 91 

Stannard's Corners Rural Cemetery Assn 21 

Thacher v. Hope Cem. Assn 34 

Thirkfield v. Mountain View Cem. Assn 85 

Thompson v. Hickey 66 

Town of Lakeview v. Rose Hill Cem. Co 6 

Went v. Methodist Protestant Ch 62, 64, 92 

Windt v. German Refd. Ch 62, 91, 94 

Winters v. State 2 

Wolford v. Crystal Lake Cem. Assn 61 

Wood v. Macon and Brunswick R. R. Co 77 

Woodlawn Cemetery v. Everett 91 



LAWS OF NEW YORK CITED, 



Const. 1847, Art. 1, sees. 12-15, page 28. 

Const. 1894, sec. 1, page 8. 

Eev. Stat., Part I, eh. 11, tit. 7, sec. 1, page 31. 

Laws 1838, ch. 297, page 66. 

Laws 1847, ch. 85, page 58. 

Laws 1847, ch. 133, pages 12, 21, 53, 67; sees. 

1-3, pp. 14, 23, 34, 57, 79, 81 ; sec. 7, p. 32 ; 

sec. 9, p. 56 ; sec. 10, p. 77. 
Laws of 1852, ch. 280, pages 36, 53; sees. 3, 

4 and 5, p. 23. 
Laws of 1853, ch. 196, page 42. 
Laws of 1854, ch. 112, sec. 11, p. 51; ch. 238, 

p. 23. 
Laws of 1860, ch. 163, sees. 1-4, p. 34. 
Laws of 1869, ch. 727, pp. 24, 36. 
Laws of 1870, ch. 760, pp. 24, 25. 
Laws of 1871, ch. 164, p. 23 ; ch. 419, p. 54. 
Laws of 1873, ch. 46, p. 37 ; ch. 452. pp. 21, 

24, 25. 
Laws of 1875, ch. 206, pp. 24, 25 : ch. 482. see?. 

22, 23, 24, and 30, subd. 6. pp. 3(1 25. 51. 
xi 



xii Laws oe New York Cited. 

Laws of 1877, ch. 31, p. 77; ah. 156, p. 23; oh. 

472, p. 53. 
Laws of 1879, eh. 310, pp. 57, 80. 
Laws of 1888, ch. 543, p. 89. 
Laws of 1889, ch. 389, p. 23. 
Laws of 1890, ch. 568, sec. 1, p. 77. 
Laws of 1890, ch. 569 (Town Law), sec. 3, p. 

37; sees. 21, 22, p. 51; sec. 193, pp. 19, 36, 

37; sec. 194, pp. 36, 67; sec. 195, pp. 31, 37; 

sees. 196, 197, p. 37. 
Laws of 1891, ch. 683, sec. 26, p. 112. 
Laws of 1892, ch. 683, p. 112; ch. 686, pp. 25, 

36; ch. 687 (General Corporation Law), p. 

47 ; sec. 2, pp. 8, 10 ; sec. 3, pp. 8, 10 ; subd. 

2, p. 8; subd. 3, p. 8; sees. 20, pp. Ill; sec. 
33, pp. 43, 48; ch. 691, sec. 2, p. 8. 

Laws of 1893, ch. 59, p. 51; ch. 661, sec. 23, 
p. 98. 

Laws of 1895, ch. 559 (Membership Corpora- 
tion Law), Art. I, p. 11; sec. 2, p. 11; sec. 

3, pp. 11, 43 ; Arts. I-III, p. 43 ; Art, III, pp. 
10, 11; sec. 13, p. 55; sees. 40, 41, p. 12; 
sec. 42, pp. 22, 24, 29, 36; sec. 43, p. 43; 
sec. 44, p. 44; sec. 45, pp. 22, 23, 28 ; sec. 46, 
p. 30 ; sec. 47, pp. 45, 46 ; sec. 48, p. 47 ; sec. 
49, pp. 47, 68, 69 ; sec. 50, pp. 31, 32 ; sec. 



Laws of New Yoke Cited. xiii 

51, p. 70; sec. 52, p. 47; sec. 53, p. 74; sec. 

54, p. 33; sec. 55, p. 34; sec. 56, p. 14; 

sec. 57, pp. 15, 30 ; sec. 61, pp. 16, 31 ; sec. 

62, p. 17; sec. 63, pp. 16, 31. 
Laws of 1895, eh. 723 (Religious Corporation 

Law), pp. 10, 47; sec. 7, pp. 38, 67; sec. 8, 

p. 48; sec. 11, pp. 39, 57. 
Laws of 1896, ch. 193, sec. 1, p. 22; ch. 225, 

sees. 83, 84, p. 52 ; eh. 325, sec. 1, pp. 22, 23 ; 

ch. 547, sees. 284-5, p. 74; ch. 908, sec. 4, 

subd. 3, p. 83; subd. 7, p. 82; ch. 908, sec. 

180, p. 112. 
Laws of 1897, ch. 129, pp. 23, 24, 53. Ch. 414 

(Village Law), sees. 42, 66, 70, 85, p. 49; 

sec. 89, subd. 20, p. 50; sec. 128, p. 50; sec. 

290, pp. 25, 37; sec. 291, pp. 50, 67; sees. 

292, 293, 294, p. 50; sec. 295, p. 38; sees. 

296, 316, p. 50; ch. 418, sees. 40, 41, p. 89; 

sees. 42, 43, 44, p. 90 ; cb. 411, p. 112 ; ck 

463, p. 51;ch. 538, p. 95. 
Laws of 1898, cb. 502, p. 19 ; cb. 543, p. 24 ; 

sees. 4-5, p. 68 ; cb. 555, p. 100. 
Laws of 1899, cb. 211, p. 98 ; ch. 324, sec. 4. p. 

100; sees. 5, 6, 7, p. 101; sec. 9, pp. 101, 

102; sec. 10, p. 102. 
Laws of 1900, cb. 480, p. 16: cb. 703. p. 92. 



xiv Laws of New Yoek Cited. 

Laws of 1901, eh. 29, sec. 22, p. 98 ; eh. 222, 

p. 58; eh. 293, p. 105; chs. 320, 386, p. 37; 

eh. 390, p. 15; eh. 415, p. 44; eh. 448, p. 

112 ; eh. 520, p. 9. 
Code Civil Procedure, section 1395, p. 59 ; sec. 

1396, p. 60; sec. 2729, subd. 3, p. 105; sec. 

3304, p. 112 ; sees. 3390-7, pp. 56, 58. 
Penal Code, eh. 6, sees. 206, 308, 309, 310, p. 

107; sees. 311, 312-13, 314, p. 87; sec. 365, 

p. 107; sec. 646, p. 88; sec. 647, p. 87. 



CEMETERY LAW. 



CHAPTEE I. 

Cemeteries Defined. 

A cemetery is defined by Webster as a place 
or ground set apart for the burial of the dead. 
It was anciently forbidden to bury the dead in 
churches or temples, or even in cities (Gibson, 
p. 453). 

The early Christians, however, buried their 
dead in the catacombs, a series of intricate un- 
derground chambers. After the persecutions 
had ceased, it began to be the practice to inter 
ecclesiastics or very holy persons in the churches 
(Gilbert v. Buzzard, 1820, 3 Phil. 349). And 
about the eighth century the custom originated 
in England of burying the dead in the ground 
adjoining the church, so that the departed souls 



2 Cemetery Law. 

might have the benefit of the prayers of the 
faithful attending the church. 

A cemetery is created by the act of setting it 
apart for the burial of the dead, marking it, and 
distinguishing it from the adjoining ground as 
a place of burial. Unless the ground is so set 
apart, it does not become a cemetery, although it 
is in the possession of a cemetery corporation 
(Concordia Cemetery Association v. The Min- 
nesota & N. w. E. K. Co., 121 111. 199). Nor 
can a person be indicted for ploughing up part 
of land (sold to him) which had been used as a 
graveyard, when there was no reservation as to 
such land in the deed, and steps had not been 
taken to establish it as a private burying ground 
under the statutory regulation (Winters v. 
State 9 Ind. 172). But when the ground has 
been enclosed, and maintained exclusively as a 
cemetery, it is a "place of burial" within the 
meaning of the Constitution of Louisiana, ex- 
empting such property from taxation, except it 
be used for private profit, and the words of the 
Constitution cannot be restricted to the portion 
of the ground actually occupied by buried 
corpses (Metairie Cemetery Association v. 
Board of Assessors, 37 La. Ann. 32). 



Cemeteries Defined. 3 

A cemetery differs from a church yard by its 
locality and incidents; by its locality, as it is 
separate and apart from any sacred building 
used for the performance of divine service; by 
its incidents, that inasmuch as no vault or bury- 
ing place in an ordinary churchyard can be pur- 
chased for a perpetuity, in a cemetery, a perma- 
nent burial place can be obtained. (Wharton's 
Law Lexicon, 8th ed. 119.) 

The words cemetery, place of burial, grave- 
yard, and burial ground, have been held to be 
similar in meaning (Jenkins v. Andover, 105 
Mass. 104; Fore v. Hoke, 48 Mo. App. 262; 
Lay v. State, 12 Ind. App. 362 ; Metairie Ceme- 
tery Association v. Board of Assessors, 37 La. 
Ann. 25). 

A cemetery is as public a place as a court- 
house or a market, and the accommodation of 
the public requires a highway to it (Cemetery 
Association v. Meninger, 14 Kan. 312). 

In California, six or more human bodies bur- 
ied at one place constitute the place a cemetery 
(Political Code, sec. 3106). 



Cemetery Law. 



CHAPTEE II. 

Kinds of Cemeteries. 

Cemeteries may be classified as: 

1. Public cemeteries. 

2. Cemetery associations. 

3. Cemeteries under the control of religious 
corporations or churches. 

4. Private cemeteries and family cemeteries. 

1. Public Cemeteries. — Cemeteries which 
are under the control of cities, towns and vil- 
lages are public cemeteries. These are some- 
times acquired by exercising the right of emi- 
nent domain, and sometimes, by dedication, gift 
or purchase. In the case of ancient cemeter- 
ies, the control of which have been thus as- 
sumed, a question may sometimes arise as to 
whether there is sufficient proof of dedication to 
public use as a burying ground. In Massachu- 
setts it was held that an indictment would be 
sustained against one for cutting trees on a 



Kinds of Cemeteries. 5 

burial ground situate on a point of land nearly 
surrounded by water, the only approach, to which 
was through defendant's land, of which the 
burial ground was originally part, when it ap- 
peared that others besides defendant's ancestors 
were buried there, and that burials had contin- 
ued to be made down to the time of indictment, 
and that no one else had claimed any control 
over the ground until the town had assumed 
charge of it about three years previously (Com- 
monwealth v. Veall, 2 Allen, Mass. 512). And 
in another case in the same State it was held 
that a place might be shown to be a public burial 
ground by evidence of dedication, occupation or 
user ; that if it had once acquired that character, 
it did not cease to have it by mere disuse ; that 
if it were a mere private place of burial, set 
apart by some former owner of the soil, for the 
interment of his own relatives, the defendant, 
who had been indicted for disfiguring a public 
burial ground, must be acquitted ; and that it 
was not necessary to show that it was extensively 
used, and by many persons and families, but 
that burials had been made there by others than 
the owners of the soil and as of right (Common- 
wealth, v. Wellington, 7 Allen, ^\Tass. 299V 



6 Cemetery Law. 

2. Cemetery Associations. — As burial 
places are indispensable, the State, whose duty 
it is to provide such places, has power to dele- 
gate that duty, and to incorporate persons into 
associations. "Amongst the most beneficent acts 
of government is that legislation which fosters 
such enterprises, and clothes an aggregate num- 
ber of citizens with power to adorn and beautify 
grounds that shall receive the remains of the 
dead" (Town of Lake View v. Rose Hill Ceme- 
tery Co., 70 111. 191). And when it has em- 
powered such an association by charter to ac- 
quire land for cemetery purposes, a subsequent 
act to prevent the exercise of such power within 
the limits originally granted is unconstitutional 
(same case, 70 111. 191). 

3. Cemeteries Under the Control of Re- 
ligious Corporations or Churches. — These 
are the most ancient kinds of cemeteries. 

The practice of interring eminent persons 
within churches is still continued to some ex- 
tent. When in the early times interments in 
the churches had become frequent, it became the 
practice, as mentioned in Chapter I, to appro- 
priate the ground adjoining the church, for 



Kinds of Cemeteries. 7 

cemetery purposes, after it had been enclosed 
and consecrated. It was lield that a minister of 
the Church of England could not refuse burial 
to two children of a Dissenter who were his 
parishioners (Kemp v. Wickes, 3 Phila. 264). 
But cemeteries controlled by the Catholic 
Church are subject to its rules, which forbid the 
interment of persons who do not die in com- 
munion with it, 

4. Private and Family Cemeteries. — In 
early colonial history it became customary to 
bury one's dead on one's own land, as a matter 
of convenience, the inhabitants being few and 
scattered. Whenever, however, the lands were 
sold, the part so appropriated to the burial of the 
dead was excepted or reserved. 

Provision has been made for the incorporation 
of such cemeteries. See next chapter. 



Cemetery Law. 



CHAPTER III. 

Incorporation of Cemeteries. 

Cemeteries may be incorporated under special 
law, when in the judgment of the legislature the 
objects of the corporation cannot be obtained 
under general laws (Const. N. T. Art. 8, sec. 1). 

They may be also organized under the general 
laws. 

Under the scheme of classification of cor- 
porations in the General Corporations Law, Ch. 
687 of 1892, sec. 2, cemetery corporations in- 
corporated under the general laws may be di- 
vided into stock and non-stock corporations. 

A stock corporation is a corporation having 
capital stock divided into, shares, and which is 
organized for profit (sec. 3, subd. 2). 

A non-stock corporation is every other kind 
of corporation (subd. 3). 

A cemetery corporation may be organized for 
business purposes, as a stock corporation, under 
the Business Corporations Law (as amended by 



iwCOKPO-RATIOiN OF CeMETEKIES. 9 

Ch. 520 of the Laws of 1901), by filing a certifi- 
cate by three or more persons, specifying: 

(1) The name of the proposed corporation. 

(2) Its purpose. 

(3) Its capital and preferred stock. 

(4) Number of shares, each not less than $5 
or more than $100, and amount of capital not to 
be less than $500. 

(5) Location. 

(6) Duration. 

(7) Directors, not to be less than three. 

(8) Names and post-office addresses of di- 
rectors for the first year. 

(9) Names and post-office addresses of the 
subscribers of the certificate, and number of 
shares to be taken by each. 

(10) Any other provisions as to its govern- 
ment and powers not contrary to law. 

Such a corporation will be governed by the 
provisions of the Business Corporations Law, 
the General Corporation Law, and the Stock 
Corporation Law, and the several amendments 
of these laws. 

See memorandum in report of Statutory Re- 
vision Commissioners in explanation of the 
Membership Corporation Law. 



10 Cemetery Law. 

A non-stock corporation is defined by the 
General Corporation Law, sec. 2, as: 

(1) A religious corporation; or 

(2) A membership corporation. 

For the purposes of this chapter, non-stock 
cemetery corporations may be classified as : 

(1) Cemeteries controlled by religious cor- 
porations. 

(2) Membership corporation cemeteries, con- 
sisting of : 

(a) Cemetery corporations. 

(b) Private cemetery corporations. 

(c) Family cemetery corporations. 

(d) Unincorporated cemeteries, whose lot 
owners determine to become a corporation under 
Article 3 of the Membership Corporation Law. 

(3) Cemeteries belonging to or controlled by 
municipal corporations. 

A municipal corporation includes a county, 
town, village, and city. (General Corporation 
Law, sec. 3.) 

The general laws relating to religious corpor- 
ations include the General Corporation Law and 
the Religious Corporation Laws (Laws 1895, 
ch. 723), and a chapter descriptive of the organ- 



Incorporation of Cemeteries. 11 

ization of such a corporation belongs more prop- 
erly to a work on Keligious Corporations. 

Before organizing a cemetery corporation un- 
der the Membership Corporation Law, Art. 3 of 
Chapter 43 of the General Laws (Laws 1895, 
ch. 559 ), reference must be had to the provisions 
of the General Corporation Law, relating to all 
corporations, and to Art. 1 of the Membership 
Corporations Law, applicable to all membership 
corporations. 

By sec. 2 of the last mentioned law, it is pro- 
vided that "the term membership corporation 
means a corporation hereafter incorporated un- 
der this chapter, or heretofore incorporated 
under any law repealed by this chapter ; but does 
not include a membership corporation created 
by special law, and the term membership corpor- 
ation created by special law means a corporation 
created by special law for purposes for all of 
which a corporation might be created under this 
chapter." 

And by sec. 3 it is provided that "if in any 
other article of this chapter there be a pro- 
vision in conflict with the provisions of this ar- 
ticle, such provision of such other article shall 
prevail. If in any other article of this chapter 



12 Cemetery Laws. 

there be a provision relating to a matter em- 
braced in this article, but not in conflict there- 
with, such provision in such other article shall 
be deemed to be additional to the provisions of 
this, article, relating to the same subject matter, 
and both provisions shall, in such case, be ap- 
plicable/*' 

By sec. 40 of Article III, relating to Ceme- 
tery Corporations, the term cemetery corpora- 
tion is defined to mean a corporation thereto- 
fore "created for cemetery purposes under a law 
repealed by this chapter, or hereinafter created 
under this article, but the general term ceme- 
tery corporation does not include a family ceme- 
tery corporation or a private cemetery cor- 
poration," and it is provided that "this article 
does not apply to cemeteries belonging to reli- 
gious or municipal corporations.'" 

The laws referred to in the last section as re- 
pealed include the general law of 1847, Oh. 133, 
for the incorporation of rural cemeteries, and 
the acts amendatory thereof. 

Cemetery Corporations. — Sec. 41 of Ar- 
ticle 3 of the Membership Corporation Law, 



Incorporation of Cemeteries. 13 

provides that seven or more persons may become 
a cemetery corporation by filing in the offices of 
the secretary of state, and clerk of the county 
where the cemetery of such corporation, or a part 
thereof, is to be situated, a certificate specify- 
ing 

(1) Each county, town or village, in which 
such cemetery,- or part thereof, is to be situated ; 

(2) The name of the proposed corporation; 

(3) The times of holding its annual meet- 
ings; 

(4) The number of its directors, either six, 
nine, twelve or fifteen; 

(5) The names of the persons to be directors 
until others are elected in their places, divided 
into three equal classess, each class to hold office 
until the first, second and third annual meet- 
ings thereafter respectively. 

(6) A percentage of the surplus proceeds of 
sales of lots, after payment of the purchase price 
of the real property by the corporation, to be 
invested as a permanent fund, the income of 
which shall be used for the improvement, preser- 
vation and embellishment of the cemetery 
grounds, and for no other purpose. 



14 Cemetery Law. 

Such certificate shall not be filed without the 
approval indorsed thereupon, or annexed there- 
to, of a justice of the Supreme Court. 

On filing such certificate, in pursuance of 
law, the signers thereof, their associates and 
successors, shall be a corporation, in accordance 
with the provisions of such certificate. 

This section substantially re-enacts sees. 1-3 
of the Act of 1847, Ch. 133. 

It has been held that notwithstanding the use 
of the word "rural" in that act, a cemetery in- 
corporated thereunder may be located within a 
city, and it is not necessary to obtain the city's 
consent to its location, although the city, when 
authorized by the legislature, may prohibit bu- 
rials therein (People v. Pratt, 129 K Y. 68; 
aff'g 14 K Y. S. 804). 

Peivate Cemetery Corporations. — Under 
sec. 56 of the Membership Corporation Law, 
seven or more persons may become a private 
cemetery corporation by setting off for a private 
cemetery inclosed real property of not more 
than three acres, and by electing at a meeting 
of the proprietors of the real property so set off, 
at which not less than seven shall be present, 



Incorporation of Cemeteries. 15 

three of their number to be directors, to hold 
office for five years. The chairman and secre- 
tary of such meeting shall make, sign and ac- 
knowledge, and file in the office of the county 
in which such real property is situated, a certifi- 
cate containing the name of the corporation, a 
description of the lands so purchased or set 
apart, and the names of the directors. Addi- 
tional lands may be acquired, not exceeding 
three acres. 

Family Cemetery Corporations. — It is 
provided by sec. 57 of the Membership Corpora- 
tion Law (as amended by Laws of 1901, Ch. 
390), that lands may be dedicated for a family 
cemetery by an individual, or by the executors 
of a deceased person with the written authority 
of the heirs, etc. The quantity of land so dedi- 
cated shall not exceed three acres, nor be located 
within one hundred rods of a dwelling house, 
unless the land so dedicated shall be already in 
actual use for burial or cemetery purposes with- 
in the limits of a city. The instrument of dedi- 
cation shall describe the lands, may appoint di- 
rectors to manage such cemetery, may prescribe 
or provide for making the by-laws, etc., may di- 



16 Cemetery Law. 

rect the manner of choosing the directors, may 
fix or provide for their qualifications, and may 
grant to them money or personal property for 
maintaining or improving the cemetery. The 
instrument of dedication with the written au- 
thority of the heirs, etc, of a deceased person 
when the dedication is made by his executor, 
etc., must be filed in the office of the clerk of 
the county where the land is situated. 

The directors, before entering on their duties, 
must file in the office of the clerk of the county 
where the land is situate, a written acceptance of 
their appointment ; and thereon such directors 
and their successors shall be a corporation by the 
name expressed in the instrument of dedica- 
tion. 

Unincoepoeated Cemeteeies. — It is pro- 
vided by sec. 61 of the Membership Corporation 
Law that lot owners in an incorporated ceme- 
tery may cause a notice to be posted in at least 
six conspicuous places in the city, town or vil- 
lage in which such cemetery is located, and pub- 
lished once in each week for three successive 
weeks in a newspaper, if any, published in such 
municipality, stating that at a time and place 



Incokpohatiojnt of Cemeteries. 17 

specified in such notice, a meeting of the owners 
of the lots in such cemetery, should be held to 
determine upon the question of incorporating 
such cemetery pursuant to Article III of the 
Membership Corporation Law. 

By sec. 62 such meeting shall be held at a 
convenient place in the city, town or village in 
which such cemetery is located, not less than 
twenty, nor more than thirty, days after the first 
posting and publication of the notice of meeting. 
At such meeting, every owner of a lot in such 
cemetery, represented thereat in person or by 
proxy, shall be entitled to one vote, for each lot 
owned by him. Any owner of a lot may, by 
written proxy, designate a person to represent 
him at such meeting, and the person so desig- 
nated shall on presentation of the proxy to the 
chairman of the meeting, have all the powers 
of a lot owner present thereat. The persons 
entitled to vote at such meeting shall elect a 
chairman and secretary thereof, and shall deter- 
mine by ballot the question of whether or not 
the lot owners shall organize as a corporation 
pursuant to Article III of the Membership Cor- 
poration Law. The ballots in favor of such 

proposition shall have the word "yes" thereon, 
2 



18 Cemetery Law. 

and the ballots against shall have the word "no" 
thereon. 

Sec. 63 (as amended by Ch. 480 of 1900) 
provides that if a majority is in favor of such 
proposition, the persons entitled to vote at such 
meeting shall select three lot owners to incor- 
porate, and the provisions of Article 3 of the 
Membership Corporation Law shall be applica- 
ble to the formation and management of such 
corporation, except that three persons may in- 
corporate, and the corporation shall not be re- 
quired to have more than three directors. Upon 
the formation of such corporation, the lot owners 
shall be members thereof, and the corporation 
shall become vested with the title to such unin- 
corporated cemetery, and the personal property 
connected therewith, subject to all the provis- 
ions of law in relation to cemetery corporations. 
And provision is made, when the title to such 
cemetery has vested in the town, for the release 
by the supervisor of all interest in the cemetery 
to the corporation. 

Cemeteries Belonging to or Controlled 
by Municipal Corporations. — The statutes 
authorizing municipal corporations to acquire 



Incorporation of Cemeteries. 19 

cemeteries or lands for cemetery purposes gen- 
erally provide that such lands, shall be part of 
the corporate property. 

The Town Law, sec. 193, as amended in 1898, 
provides that the board of trustees of burial 
grounds thereby constituted shall be a corpora- 
tion capable of accepting gifts, etc., of personal 
property for the improvement of the ceme^- 
teries. 



20 Cemetery Law. 



CHAPTER IV. 

How Lands are Acquired for Cemeteries. 

Eminent Domain. — Lands may be acquired 
for cemetery purposes by exercise of the right 
of eminent domain, but as under that right pri- 
vate property can be only taken for a public 
use, a petition by a cemetery corporation to 
condemn land for the use of a cemetery must 
show that the privilege of interment is open 
to the public, as a cemetery may be private as 
well as public, and it must also show affirma- 
tively a public need for the cemetery, and where 
a statute of West Virginia provided that no land 
should be taken for cemetery purposes which lay 
within four hundred yards of a dwelling house, 
the petition should contain an allegation to meet 
this provision (Fork Ridge Baptist Cemetery 
Association v. Eidge, 33 W. V. 262) in which 
case it was also held that as private property can 
be taken for public uses, against the consent of 
the owner, only as provided by law, the statutes 



How Lands are Acquired. 21 

regulating such proceedings must be strictly 
pursued. And when land is sought as an en- 
largement to a burying ground already in use, 
it is sufficient if the additional land is to be for 
the use of the public, even though the existing 
ground had been for the use of individuals only 
(Edwards v. Stonington Cemetery Association, 
20 Conn. 466). 

In New York State it has been held that the 
question whether property sought for cemetery 
purposes was for a public or private use, is a 
judicial question, and to be passed upon by the 
courts, and that the legislature is not the sole 
judge as to whether the right of eminent domain 
may be exercised, and as the use of land for ru- 
ral cemetery associations, incorporated under the 
Act of 1847, Ch. 133 (the general law as to such 
associations) is private, and not public, the 
Act of 1873*, Ch. 452, so far as it authorizes the 
taking of lands by right of eminent domain, by 
such associations is unconstitutional (Matter of 
Deansville Cemetery Association, 66 N. T. 
569). 

Inasmuch as the general law of 1847, Ch. 
133 (except sec, 10), lias been repealed by Laws 
1895, Ch. 559 (General Laws of New York, 



22 Cemetery Law. 

Membership Corporation Law, sec. 45, as 
amended in 1896), providing that if the certifi- 
cates of incorporation of rural cemeteries do not 
exclude any person from purchasing on equal 
terms with others, a burial lot, such a rural cem- 
etery corporation may secure lands by condem- 
nation, but the fact must be alleged in the peti- 
tion (The Stannards- Corners Rural Cemetery 
Association, 14 Mis. Rep. 27). 

The land which may be so acquired must be 
exclusively for cemetery purposes, and must not 
consist of more than two hundred acres, in one 
continuous tract, wholly or partly within the 
county in which its certificate of incorporation 
is recorded (Membership Corporation Law, sec. 
45), except that in the counties of Kings, 
Queens, Rockland, Westchester, or Erie, lands 
shall not be so acquired or set apart except with 
the consent of the board of supervisors, which 
consent may be granted upon such conditions 
as, in the board's judgment, the public health or 
good may require (Membership Corporation 
Law, sec. 42, as amended in 1896) and the sec- 
tion provides for the method of obtaining such 
consent, and it is also thereby provided that the 
board of supervisors of each such county, may 



How JLajnus ark Acquired. 23 

make such regulations as to the mode of burials 
in any cemetery in the county, as in its judgment 
the public health may require. 

A cemetery corporation may also acquire by 
condemnation, exclusively for the purposes of a 
cemetery, any real estate or interest therein nec- 
essary to supply water for the uses of such ceme- 
tery, and the right to lay conduits and water 
pipes over the lands of others ; the right to in- 
tercept and divert the flow of waters from the 
lands of riparian owners, and from persons own- 
ing or interested in any waters, except that wa- 
ters shall not be taken from the State canals or 
their feeders, but it is- provided that no ceme- 
tery shall be located in any city, without the con- 
sent of the common council, or incorporated vil- 
lage, without the consent of its trustees (sec. 45, 
as amended in 1896). 

By laws of 1852, Ch. 280, sees. 3, 4 and 5 
as amended by Laws of 1854, Ch. 238, Laws of 
1871, Ch. 164, Laws of 1877, Ch. 156, Laws of 
1889, Ch. 389, and Laws of 1897, Ch. 129, it 
is provided that ' rural cemetery corporations, 
incorporated under the General Act of 1S47, 
Ch. 133, should not acquire lands by deed or 
otherwise in Westchester, T\inus, Queens, "Rock- 



24 Cemetery Law. 

land, or Suffolk counties, without the consent 
of the supervisors, which may be granted on 
conditions ; nor should it he lawful for any per- 
son or incorporation not incorporated under said 
act to take as aforesaid, or set apart or use any 
. land or ground in either of said counties for 
cemetery purposes without such consent as afore- 
said. 

The foregoing act as so amended was not re- 
pealed by the Membership Corporation Law, 
as it relates to individuals as well as corpora- 
tions. It will be obseiwed that, as to corpora- 
tions, the amending act of 1897 is inconsistent 
with sec. 42 of the Membership Corporation 
Law, as the former law does not limit the 
amount of land which may be acquired, whereas 
the latter provides that not more than two 
hundred and fifty acres of land shall be taken, 
and the former includes Suffolk county, but 
does not include Erie county, whereas the latter 
embraces the latter county, but omits Suffolk 
county. 

By Laws of 1869, Ch. 727, as amended by 
Laws of 1870, Ch. 760, Laws of 1873, Ch. 452, 
Laws 1875, Ch. 206, and Laws 1898, Ch. 543, 
it is provided that cities and villages may ac- 



Jriow Lajntds are Acquired. 25 

quire by deed, devise, or otherwise, or by exer- 
cise of the right of eminent domain lands, or 
additional lands, for burial purposes and that 
lots in such cemeteries shall be held indivisible, 
and shall descend to the heirs-at-law or devisees 
of the proprietor subject to the limitations and 
conditions mentioned in the Act. 

The amending laws of 1870, 1873, and 1875, 
also extended this privilege to incorporated cem- 
etery associations, but these acts, to that extent, 
have been for the reasons already stated, de- 
clared unconstitutional (Matter of Deansville 
Cemetery Association, 66 K Y. 569). 

By Laws of 1875, Ch. 482, sees. 22, 23, 24, 
and sec. 30, subd. 6, it is provided that boards 
of supervisors of counties, whose boundaries were 
not coterminous with cities may authorize 
cemetery corporations owning or controlling 
lands outside cities, to acquire, by purchase or 
otherwise, additional lands for cemetery pur- 
poses, and to authorize towns and villages to en- 
large and improve cemeteries owned by them. 

This act was repealed by the 'County Taw 
(Laws 1892, Ch. 686). 

It is provided by the General Village Laws 
of Wow York, Ch. 414, 1897, Art. II, see. 290, 



26 Cemetery Lxiw. 

that the board of cemetery commissioners of a 
village may acquire by condemnation in the 
manner pointed out in the section, lands for a 
cemetery, within the village, or within three 
miles- of its boundaries. All lands so acquired 
shall be part of the village territory. 

Conveyance. — Lands may also be acquired 
for cemetery purposes by deed, and when the 
conveyance especially declares that the prem- 
ises are to be used for cemetery purposes and 
for no other purpose, neither the parties to the 
deed or their heirs, or the lot holders, can divert 
it from those uses, even though a valuable con- 
sideration has been paid (Reed v. StoufTer, 56 
Md. 236). 

A grant of lands to church societies for the 
purposes of a church and church yard and bury- 
ing place, and for no other purpose, must be ac- 
cepted on the terms on which it was given, or 
relinquished ; it canno't be altered by any new 
agreement between the donor and donees, or 
converted to any other purpose. And even if 
the church has been abandoned, and the grantee 
societies dissolved, the use as to the burying 
ground must still be continued to those who 
had or have relatives buried there, and on the 



How Lands are Acquired. 27 

failure of such use, the lands must revert to the 
grantor's heirs (Appeal of Gumbert, 110 Pa. 
St. 496). 

When, however, lands were conveyed "for a 
place of burial and other purposes/' and there 
were no words indicating that the grant was to 
be void, and the property to revert to grantor if 
the expressed purpose was not carried out, the 
grantee took title in fee simple, and there was 
no reversion, even although the use of the lands 
for cemetery purposes was discontinued, and the 
grantee removed the bodies, divided the land 
into lots, and sold same. (Methodist Protestant 
Church of Cincinnati v. Laws, 7 Ohio C. C. 
211.) 

In Pennsylvania if lands are conveyed to trus- 
tees of a religious congregation for the benefit 
of its poor, for the purpose of erecting a church, 
and for a burial ground, the lands become 
legally vested in the congregation as absolute 
owner, and the land, being entirely its own, it 
■may sell or mortgage it when and to whom it 
pleases (Brendell v. German Reformed Cor- 
poration, 33 Pa. St. 415). 

When land is sold for cemetery purposes and 
the agreement is wholly executory, the grantee 



28 Cemetery Law. 

agreeing to pay a certain sum to grantor on the 
sale of each lot ; the title does not pass to the 
association until the lands are sold for cemetery 
purposes (Bennett v. Culver, 97 N. Y. 250). 
Such an agreement does not violate the con- 
stitutional provisions against feudal tenures, 
etc., Art. I, Const. 1847, sees. 12-15 (Bennett 
v. Washington Cemetery, 24 Abb. K C. 459). 
When the agreement is that no lot shall be sold 
for less than $80, out of which the grantor is to 
be paid $40, the latter is entitled to be paid that 
sum even though a lot is sold for less than $80 
(Same case, 24 Abb. N. C. 459), but a provis- 
ion to pay $3 for each grave opening, is only 
applicable where single graves were sold, and 
did not include grave openings on lots sold 
(Same case, 24 Abb. K C. 459; 47 App Div. 
365). 

The Membership Corporation Law, as 
amended in 1896, provides, sec. 45, for the ac- 
quisition, other than by condemnation, of land 
for cemetery purposes, not exceeding two hun- 
dred acres, by a cemetery corporation, the land 
to be situated wholly or partly within the 
county within which its certificate of corpora- 
tion is recorded (save that as to lands in Kings, 



How Lakds are Acquired. 29 

Queens, ■ Rockland and Westchester, the consent 
of the board of supervisors must first be ob- 
tained — sec. 42), and also of land for cemetery 
purposes necessary to supply water, and the right 
to lay pipes, etc., and divert waters, except ca- 
nal waters, or streams feeding same, and may 
also acquire other than by condemnation, addi- 
tional real property not exceeding in value two 
hundred thousand dollars, for the purposes of 
the convenient transaction of its general busi- 
ness, no portion of which shall be used for the 
purpose of a cemetery. It is also provided that 
a cemetery corporation may acquire, otherwise 
than by condemnation, additional real or per- 
sonal property, absolutely, or in trust, in per- 
petuity or otherwise, for the improvement or 
embellishment, but not the enlargement, of its 
cemetery. It is also provided that a cemetery 
corporation may accept a conveyance of real 
property held by a religious corporation for bu- 
rial purposes, or by trustees, for such purposes, 
subject to the trusts to which grantor's title was 
subject. Lots previously sold in any such lands 
and grants for burial purposes therein pre- 
viously made, shall not be affected by any such 
conveyance; nor shall any grave, monument, etc.. 



30 Cemetery Law. 

be disturbed, or remains removed without the 
consent of the lot owner or the heirs of the per- 
son buried therein. It is further provided that 
no cemetery shall hereafter be located in any 
city or incorporated village without the consent 
of the common council of such city, or the board 
of trustees of such village. Provision is also 
made by the 46th sec. for surveying and map- 
ping of the cemetery premises. 

By section 57 provision is made for the dedi- 
cation by deed or devise of land not exceeding 
three acres for a family cemetery, not to be lo- 
cated within one hundred rods of a dwelling 
house without the consent of the owner. The 
instrument shall describe the land, may appoint 
directors to manage such cemetery, direct the 
manner of choosing successors to the directors, 
and may grant to such directors money or per- 
sonal property, to be a fund for improving such 
cemetery, such fund when created by will not 
to exceed ten per cent, of testator's estate in ex- 
cess of his debts. 

The directors are to give bond to the surrogate 
of the county in which the lands are situate, 
and to file an account of receipts and expendi- 
tures with him once a year. Provision is. also 



How Lands are Acquired. 31 

made by sec. 63 for the conveyance to a ceme- 
tery corporation to be incorporated under the 
provisions of sees. 61, 62 and 63, of cemetery 
lands formerly belonging to such corporation 
prior to its incorporation, the title to which had 
vested in the town pursuant to sec. 195 of the 
Town Law, or Eev. Stat. Part 1, Oh. 11, tit. 7, 
sec. 1. The conveyance to be made by the su- 
pervisor of the town to the directors of such cor- 
poration. 

It is provided by sec. 50 that half the pro- 
ceeds of the sale of the use of lots in a cemetery 
shall be applied to the payment of the purchase 
money of the real property acquired by the cor- 
poration until such purchase money shall be 
paid, and the residue in improving and embel- 
lishing the cemetery, and the avenues and roads 
leading thereto, and to defraying the incidental 
expenses of the corporation, and after the pay- 
ment of the purchase money, and the expense of 
surveying and laying out the cemetery, the pro- 
ceeds, of sales of lots should be only applied to 
the embellishment of the cemetery, and the inci- 
dental expenses of the corpration. Such cor- 
poration may agree with a person from whom 
lands are purchased to pay therefor a specified 



32 Cemetery Law. 

share not exceeding one-half of the proceeds of 
all sales of the use of lots and plats from such 
land, and such share shall be first applied to the 
payment of such purchase money, and the resi- 
due thereof shall be applied to the preservation 
and embellishment of the cemetery, and the in- 
cidental expenses of the corporation. When 
lands have been so purchased, and are to be paid 
for as thus provided, the prices of the lots shall 
not be changed whilst the purchase money re- 
mains unpaid without the written consent of 
a majority in interest of the persons from whom 
the lands were purchased, their heirs, repre- 
sentatives or assigns. 

It was held in Palmer v. Cypress Hill Ceme- 
tery, 122 K Y. 429; aff'g 47 Hun, 636, that 
although the sale of four hundred lots by a ceme- 
tery association to its superintendent to be by 
him resold, might be ultra vires, as it might 
deny to the association the power to regulate the 
conditions of the sales as provided by sec. 7 of 
Act of 1847, of which sec. 50 is a re-enactment, 
yet as the validity of the contract was admitted 
by the defendant, which was willing to perform 
it, on payment of the purchase money, the ques- 



How Lajxds are Acquired. 33 

tion as to its corporate power to make the con- 
tract could not arise. 

Sec. 54 provides that if a cemetery corpora- 
tion be indebted for lands purchased for ceme- 
tery purposes, or for services rendered or ma- 
terials furnished in preserving or improving its 
cemetery, the directors, by a majority vote may, 
with the creditors' consent, issue certificates un- 
der the corporate seal, signed by the president 
and secretary, for the amount of such indebted- 
ness or a part thereof, payable at such times and 
drawing such a rate of interest, and in such 
sums as may be agreed on with such creditors; 
but the amount of any certificate should not be 
less than one hundred dollars, nor the interest 
higher than the rate authorized by law. The 
certificate shall be transferable by delivery un- 
less otherwise provided on the face thereof; 
and the directors shall keep in the corporation's 
books accounts of the number and amount of 
such certificates, the persons to whom issued, 
the time of maturity, and the rate of interest. 
The directors shall set aside from the proceeds 
of sales of the use of lots such sums as thev may 
deem necessary to pay said certificates at their 



34 Cemetery Law. 

maturity. Until such certificates are paid each 
holder thereof shall be entitled, at all meetings 
of the corporation, to one vote for each one hun- 
dred dollars of such indebtedness held by him. 
Such certificates shall not be a lien on a lot be- 
longing to a lot owner. 

It was held in Thacher v. Hope Cemetery As- 
sociation, 126 E". Y. 507, that if a certificate 
holder allows more than ten years to elapse from 
the time when sufficient money had been re- 
ceived by the defendant cemetery association 
from the sales of lots to pay the whole amount 
due according to the terms of the certificate, be- 
fore commencing action to recover same, he is 
barred by the statute of limitations. 

Bonds issued by a cemetery association in- 
corporated under the Act of 1847, as amended in 
1860, in payment for the cemetery lands and for 
improving it, have been held to be valid. Sey- 
mour v. Spring Forest Cemetery Association, 
19 K T. Sup. 94; aff'd 144 K T. 333. Sec. 
54 is a substantial re-enactment of the provisions 
of the Act of 1860, Ch. 163, sees. 1-4. 

Sec. 55 provides that if a cemetery corpora- 
tion incorporated under a law repealed by the 
Membership Corporation Law, has converted its 



How Lands are Acquired, 35 

indebtedness into stock certificates, in pursuance 
of law, interest shall not be paid to such stock- 
holders, but they shall be entitled to dividends 
thereon for their proportional part of the net 
receipts of the corporation, and if such shall 
have been fixed by agreement at the time of the 
issue of stock, then they shall receive the agreed 
dividends. Such certificates shall be only trans- 
ferred on the association's books, and each holder 
shall be entitled to one vote for every share of 
stock. A register shall be kept of the issue of 
stock. A director may hold stock for his own 
benefit. No such stock shall be a lien on the lot 
jf a lot holder ; and no other or greater liability 
of the corporation issuing such stock shall be 
created or deemed to exist than may be necessary 
to enforce the faithful application of the surplus 
or net receipts of the corporation to and among 
the holders of the stock in the manner hereinbe- 
fore specified. A cemetery which has hereto- 
fore issued such certificates of stock is a mem- 
bership corporation, and not a stock corporation. 
Lands may be also acquired by deed or 
devise in Kings, Queens, Rockland, Westches- 
ter, Suffolk or Erie counties, for cemetery pur- 
poses (Membership Corporation Law, sec. 42, 



36 Cemetery Law. 

as amended in 1896, and Laws 1852, Ch. 280, 
as amended in 1897), and by cities and villages 
(Laws 1869, Ch. *727, and amendments), and 
supervisors of certain counties might authorize 
cemetery corporations to acquire by purchase 
additional lands for cemetery purposes, and au- 
thorize towns and villages to enlarge and im- 
prove cemeteries owned by them. Laws 1875, 
Ch. 482, repealed by the County Law in 1892. 

It is provided by the Town Law, Laws 1890, 
Ch. 569, sec. 193, as amended in 1898, that 
three persons may be chosen at an annual town 
meeting to act as a board of trustees of burial 
grounds belonging to the town, within its limits, 
and that the supervisor may convey same and 
any additional lands to be acquired, to such 
trustees, who shall hold office for two years, and 
be a corporation capable of accepting gifts and 
bequests of personal property for the improve- 
ment of the cemeteries or lots therein. 

Sec. 194 provides for the laying out of lots; 
the filing of a plat in the county clerk's office ; 
the setting aside of lots for free interment of 
indigent persons, and for the conveyance of lots, 
and for the expenditure of the purchase monies 
on the improvement of the grounds. 



How Lands are Acquired. 37 

Sec. 195 (as amended by Ch. 386 of the Laws 
of 1901) provides that the title to every burying 
ground in the town, which shall have been so 
used for fourteen years, shall be deemed to be 
vested in such town, and subject to its govern- 
ment. In any town in which trustees have not 
been chosen as provided by sec. 193, the town 
board may adopt regulations for the proper care 
of cemeteries, therein. If a cemetery is not 
used for burial purposes, provision is made for 
the care of same by the commissioners of high- 
ways. 

And sec. 3 provides that on the alteration of 
the boundaries of a town, no town cemetery, 
or burial ground shall be sold or divided, but 
the same shall belong to the town within which 
it may be situated after a division of the town 
shall be made. 

And by sees. 196 and 197 (added by Laws of 
1901, Oh. 320) the rights and powers given by 
Sec. 193, and Ch. 46 of Laws of 1873, over the 
cemeteries of a town' which shall consolidate 
with a city, village or other town, are given to 
the latter. 

The Village Law also provides (Law? 189T, 
Ch. 414, sec. 290") for the acquisition by pur- 



38 Cemetery Law. 

chase, or by gift, grant or devise, of lands with- 
in the village or within three miles of its bounda- 
ries for cemetery purposes. 

And sec. 295 provides that the board of ceme- 
tery commissioners may take property given, 
devised or bequeathed in trust for the improve- 
ment of such cemetery or lots therein. 

By the Religious Corporation Law (Ch. 723 
of 1895, sec. 7) it is provided that a religious 
corporation may take and hold, by purchase, 
grant, gift or devise, real property for the pur- 
poses of a cemetery, or lots in a cemetery con- 
nected with it as may be conveyed or devised 
to it, with or without provisions therein, limit- 
ing interments to any particular class of per- 
sons, and may acquire in like manner property 
in trust for the improvement of the cemetery, 
or cemetery lots. 

It may erect thereon a building for religious 
services for the burial of the dead, or for the use 
of employees, and may sell lots subject to such 
restrictions as may be imposed by the instru- 
ment of acquisition, or by its own rules, the 
conveyances to be signed, sealed, acknowledged 
and recorded in like manner, and with like effect 
as a deed of real property. 



How Lands are Acquired. 39 

And by sec. 11 it is provided that lots, plats 
or burial permits in a cemetery owned by a re- 
ligious corporation may be sold without leave 
of the court. 

Prescription. — An easement of the right to 
burial may be acquired by prescription, or long 
continued user of the land, and burial of the 
dead is the only possession, when claimed and 
known, necessary to ultimately create complete 
ownership of the easement so as to render it in- 
heritable. And there cannot be an adverse pos- 
session by any other person whilst gravestones 
stand on the ground indicating previous burials 
(Hook v. Joyce, 94 Ky. 450). 

Dedication. — Land may be dedicated to the 
use of a cemetery (Mowry v. City of Providence, 
10 E. I. 52 ; Hunter v. Trustees of Sandy Hill, 
6 Hill, K Y. 407). It may be made without 
deed or other writing. It is not necessary that 
the owner should part with his title, and the 
effect of a dedication is not to deprive him of 
his title, but to prevent him, whilst the dedica- 
tion continues, from asserting a right to possess 
the land dedicated. If, however, the cemetery 
or burial place should completely lose its iden- 
tity as a burial ground, possession of the ground 



i 40 Cemeteey Law. 

may be reclaimed (Hunter v. Trustees of 
. Sandy Hill, 6 Hill, K Y. 407). 

No particular form is. necessary to constitute 
a dedication. Whether in fact there has been 
abdication depends upon the intention of the 
original owner. Long usage, with the continued 
acquiescence of the original owner, is usually 
sufficient evidence of such a dedication (Schoon- 
maker v. The Ref . Prot. Dutch Church, 5 How. 
Prac. Rep. 1ST. Y. 265). Dedication is, there- 
fore, inferred from (1) the assent of the owner, 
and (2) the use of the land for the purposes 
of the dedication. 

If the owner of a farm states to persons liv- 
ing near him that if a portion of the land were 
fenced off the land so fenced might be used as a 
burying ground, and the land is actually fenced 
off by the donor's neighbors, and it is exclusive- 
ly used as a burying ground for fifty years, and 
jnany persons have been buried there free of 
'charge, there is a dedication to the public gener- 
ally, and not to those who helped to fence the 
yard, or who first appropriated lots therein 
{Pierce v. Spofford, 53 Ver. 394). 

But where there are circumstances which re- 
but the presumption of an intention to dedicate 



How Lajnds are Acquired. 41 

arising from long usage, there is in fact no dedi- 
cation. When it appeared that a church cor- 
poration was the owner in fee of a burying 
ground, and that no burials had ever been made 
there without its consent, it was held that al- 
though a great number of plaintiff's relatives 
were buried there, a mere license only was con- 
ferred which did not secure any interest in the 
land, and that plaintiff could not restrain the 
corporation from erecting a church edifice over 
the graves of plaintiff's relatives, the corpora- 
tion undertaking not to disturb the remains of 
the dead, and to preserve the grave stones 
(Schoonmaker v. Ref. Prot. Dutch Church, 5 
Hun, Pr. Rep. 265). 



42 Cemetery Law. 



CHAPTER V. 

Government and Management of Ceme- 
teries. 

Cemeteries incorporated under special acts 
are governed thereby, and by the by-laws, rules 
and regulations which they are empowered to 
make thereunder. 

When by a special act (Ch. 196 of 1853) the 
trustees of two church corporations were consti- 
tuted a joint board of trustees of a corporation 
called the Union Cemetery, created by the Act, 
and by a subsequent act one of such church cor- 
porations was authorized to release all its in- 
terest in the cemetery to the other, and by a 
further act the successor church corporation 
was authorized to sell the cemetery, it was held 
that one of the two church corporations to whom 
the other had released, was liable for the breach 
of a written contract by which plaintiff was 
employed as superintendent of the cemetery 



Government and Management. 43 

(Cocheu v. Methodist Protestant Church, 32 
App. Div. 239). 

Cemeteries incorporated under general laws 
are governed by their provisions, and by the by- 
laws, rules and regulations which they are em- 
powered to make thereunder. But such by-laws 
must be reasonable (Rosehill Cemetery Co. v. 
Hopkinson, 114 111. 209). 

Membership corporations created under spec- 
ial laws may now also avail themselves of the 
provisions of the general laws, thus obviating the 
necessity of frequent applications for special 
legislation. See report of revision commis- 
sioners. 

Cemetery Corporations.— A cemetery cor- 
poration organized under the Membership Cor- 
poration Law is governed by the provisions of 
the General Corporation Law, and Acts 1 and 3 
of the Membership Corporation Law, but if 
there is a conflict between their provisions, the 
latter must prevail. Sec. 33, General Corpora- 
tion Law; sec. 3, Art. 1 Membership Corpora- 
tion Law. 

By the Membership Corporation Law, sec. 
43, it is provided that public notice of each an- 



,44 Cemetery Law. 

nual meeting of a cemetery corporation shall 
be given in a manner to be prescribed by its by- 
laws. Each person of full age owning a lot or 
plot, or part of either, containing at least ninety- 
six square feet of land in the cemetery of the 
corporation, or if there be two or more owners 
of such lot, then one of them designated by a 
majority of such joint owners to represent such 
lot or plat, may cast one vote for each such lot 
or plat or part of either, so owned, at the meet- 
ings of the corporation. Each owner of a cer- 
tificate of stock theretofore lawfully issued, and 
each owner of a certificate of indebtedness of a 
cemetery corporation, may vote at the meetings 
of the corporation. Each owner of stock there- 
tofore lawfully issued shall be entitled to one 
vote for each share of stock owned by him, at the 
meetings of the corporation. Each owner of a 
certificate of indebtedness of a cemetery cor- 
poration shall be entitled to one vote at such 
meetings for each one hundred dollars of such 
indebtedness. 

By sec. 44 (as amended by Laws of 1901, Ch. 
415) the directors of a cemetery corporation 
shall be elected at its annual meeting by ballot, 
by the persons entiled to vote thereat. If at 



Government and Management. 45 

any such meeting one-fifth of the owners of lots 
or plats shall not in person or by proxy, vote 
thereat, the directors shall be chosen by the ex- 
isting directors, or a majority of them, unless 
such directors shall, at such meeting, be chosen 
by a majority of the votes of the owners of cer- 
tificates of stock or indebtedness. The term 
of office of a director shall be three years. Pro- 
vision is made for the filling of a vacancy in the 
office of director until next annual meeting. 
After the first annual meeting no one but a lot 
owner shall be eligible to the office of director. 
Provision is also made for increasing or dimin- 
ishing the number of directors, and for their 
election when the annual meeting shall not be 
held on the day mentioned in the certificate. 

Sec. 47 provides for the making of reasonable 
rules and regulations for the care and manage- 
ment of the property of the corporation, and 
that the directors may recover a penalty not ex- 
ceeding $25 for a violation of such rule in a 
civil action. 

It has been held that the provision of this 
section inflicting a penalty is not applicable 
to persons who are not members of a cemetery 
corporation, and accordingly when a non-mem- 



46 Cemetery Law. 

ber performed work upon a lot in a cemetery 
without the consent of the superintendent, not- 
withstanding a rule to the contrary, it was held 
that the statutory penalty of $25 could not 
be recovered in p, civil action, and the associa- 
tion must be relegated to its common law rem- 
edy against the defendant as a trespasser 
(Johnstown Cemetery Association v. Parker, 
45 App. Div. 55, affirming s. c. 28 Misc. R. 
280), and it was held by the Supreme Court in 
that case that when a lot owner has the entire 
estate in his lot by deed subject to the rules 
annexed thereto, one of which is that he may 
cultivate trees, shrubs and plants, he has the 
right to employ one to cut the grass and remove 
weeds from the lot, provided it is done within 
proper hours, and that no reasonable regulation 
of the cemetery is violated. 

A cemetery corporation must, under a pro- 
vision of sec. 47 (for regulating the introduction 
and care of plants, trees and shrubs within such 
grounds), use reasonable care not to permit the 
introduction of anything noxious into the lots, 
but in the absence of an agreement as to special 
care of a lot, it is not liable for injury to a 



Government and Management. 47 

woman occasioned by poison ivy, whilst she was 
engaged planting flowers, on her husband's grave, 
especially when the association had no actual or 
constructive notice that such poison ivy was 
upon the grave (George v. Cypress Hills Ceme- 
tery, 32 App. Div. 281). 

Section 48 provides for the keeping of a rec- 
ord of burials. 

By sec. 49, the directors must fix the prices 
of burial lots, and keep a plain printed copy of 
the schedule of such prices publicly posted in 
the offices of the corporation, for public inspec- 
tion. 

Section 52 provides for the raising by taxa- 
tion of the lot owners of moneys for the im- 
provement of the cemetery when its own funds 
are insufficient. 

Religious Corporations. — A religious cor- 
poration subject to the provisions of the Relig- 
ious Corporations Law is governed by the Gen- 
eral Corporation Law, as well as by the pro- 
visions of Art. I of the Religious Corporations 
Law and such other articles of the latter law as 
is specially applicable to it, but the provisions 



48 Cemetery Law. 

of the Religious Corporations Law, if in con- 
flict with the General Corporation Law, must 
prevail. (General Corporation Law, sec. 33.) 
Section 8 of Art. I of the Religious Corpora- 
tions Law provides that a religious corporation 
may, notwithstanding the restrictions contained 
in any conveyance or devise to it, remove the 
human remains in a cemetery owned by it 
to another cemetery owned by it if the trus- 
tees thereof so determine, and if either three- 
fourths of the members of such corporation, 
qualified to vote at its corporate meetings, 
sign and acknowledge and cause to be re- 
corded in the office of the clerk of the county 
in which such cemetery, or a part thereof, 
is situated, a written consent thereto, or if 
three-fourths of the members of such corpora- 
tion, qualified to vote and present and voting, at 
a corporate meeting of such corporation spe- 
cially called for that purpose, shall approve 
thereof. But if such corporation be a church, 
previous notice of the object of such meeting 
shall be published for at least four consecutive 
weeks in a newspaper of the town, village or city 
in which the cemetery from which the removal 
is proposed, is situated, or if no newspaper is 



Government ajn t d Management. 49 

published therein, then in a newspaper desig- 
nated by the county judge of such county. Such 
removal shall be made in an appropriate man- 
ner, and in accordance with such directions as 
to the manner thereof as may be given by the 
board of health of the town, village or city in 
which the cemetery from which the removal is 
made is situated. All tombstones, monuments, 
or other erections at or upon any grave from 
which any remains are removed shall be prop- 
erly replaced or raised at the grave where the 
remains are reinterred. 

Cemeteries in Villages. — Section 42 of the 
Village Law provides that a cemetery commis- 
sioner must be the owner of property assessed 
upon the last preceding assessment roll of the 
village, while he holds office, and sec. 66 provides 
for the establishment of a separate board of cem- 
etery commissioners, or a municipal board, with 
the powers, of such, combined with a board of 
fire, water, etc., commissioners, and sec. TO pro- 
vides for the abolition of a separate board of 
cemetery commissioners. 

Cemetery commissioners must serve without 
compensation (sec. 85) ; may take testimony in 

4 



50 Cemeteey Law. 

a proceeding before them (sec. 316) : and viola- 
tions of their ordinances may be punished by the 
trustees (sec. 89, subd. 20). 

Section 101, subd. 5, provides for a cemetery 
fund, consisting of moneys raised by taxation, 
for the purchase, etc., of cemeteries, proceeds 
sale of lots, and penalties for violations of ordi- 
nances. 

Section 128 provides for the issue of bonds 
to construct and maintain cemeteries. 

Section 291 provides for the division of ceme- 
teries into lots, and for the conveyance thereof 
to individuals for the sole purpose of inter- 
ment, and the keeping of a record of sales and 
of conveyances. 

Section 292 provides that the board of ceme- 
tery commissioners may make reasonable ordi- 
nances for the care of the cemetery grounds, 
etc., as set forth in the section. 

Section 293 provides for the interment of 
strangers. 

Section 294 requires the cemetery commis- 
sioners to keep a record of interments, and sec. 
296 provides for the making of an annual re- 
port. % 



Government and Management. 51 

Cemeteries in Towns. — Section 21 of the 
Town Law provides for the creation of a board 
of trustees of cemeteries in the town belonging 
to it, and sec. 22 provides for the laying out of 
burial lots by the trustees, and for the record- 
ing of a plot — the interment of indigent per- 
sons — the conveyance of burial lots and expendi- 
ture of the proceeds in improving the grounds. 
By Laws of 1854, ch. 112, sec. 11, amended by 
Laws of 1893, ch. 59, it is provided that the 
supervisor of a town may remove bodies in a 
private cemetery in the town to any other ceme- 
tery in the town with the consent of the owners 
and of the next of kin of the deceased in the 
State, and, as further amended by Laws 1897, 
ch. 463, it is provided that private cemetery 
owners may remove interred bodies to any other 
cemetery in the town, or to some cemetery desig- 
nated by deceased's next of kin, notice to be 
given to such next of kin, if known, within ten 
days of removal. 

Cemeteries in Counties. — By Laws of 
1875, ch. 482 (sees. 22, 23, 24, and sec. 30, 
subd. 6), it is provided that boards of super- 



52 Cemetery Law. 

visors of counties whose boundaries were not co- 
terminous with cities, might authorize cemetery 
corporations owning lands outside cities to sell 
lands not needed for cemetery purposes, and to 
use proceeds of sale in purchasing other lands 
and improving their cemeteries, and to author- 
ize towns and villages to remove bodies to proper 
cemetery grounds on thirty days' notice; and 
for the removal of headstones, etc. ; to author- 
ize towns, villages, societies or associations to 
sell such abandoned cemeteries and appropriate 
proceeds to pay expenses and repurchase other 
cemetery grounds ; that lands sold should be no 
longer exempt from taxation, and that laws con- 
flicting with the exercise of such powers should 
be deemed inoperative. 

This law was repealed in 1892 by the County 
Law. 

The Poor Law (ch. 225 of 1896), sec. 83, pro- 
vides that the board of supervisors in each 
county shall designate some proper person who 
shall cause to be interred the bodies of honor- 
ably discharged soldiers, sailors or marines who 
shall die without leaving sufficient means to de- 
fray funeral expenses, and sec. 84 provides for 



Government and Management. 53 

the erection of headstones on the graves of those 
so buried. 

Cemeteries in Certain Counties. — By 
Laws of 1852, ch. 280, as amended by various 
laws, the latest of which is Laws of 1897, ch. 
129, the supervisors of Kings, Queens, West- 
chester, Rockland and Suffolk counties may 
make regulations as to burials in any cemetery 
in these counties as public health and decency 
may require. 

Laws 1877, ch. 472, provides for the regis- 
tration of all lots, except those held and desig- 
nated for family burial purposes, in any ceme- 
tery in Kings and Queens counties, organized 
under the general Rural Cemeteries Law of 
1847, ch. 133, by the cemetery associations in 
books to be provided for the purpose — and for 
the registration of the transfer of cemetery lots 
at the office of the cemetery association, that lots 
not held for family purposes might be taxed, 
the moneys realized to be used in improving the 
cemetery grounds, etc., and that deeds need not 
be furnished to any person in arrears in the pay- 
ment of such tax. 



54 Cemetery Law. 



CHAPTER VI. 

Sale, Mortgage or Lease of Cemetery 
Proporty. 

The laws applicable to the sale, mortgage or 
lease of cemetery property are set forth in this 
chapter. j 

General Law Applicable to All Ceme- 
teries. — By Laws 1871, ch. 419, it is provided 
that the Supreme Court may authorize the trus- 
tees of burial grounds or rural cemetery asso- 
ciations to sell any unoccupied real estate held 
by them, and to apply the proceeds as shall be 
most for their interests ; but no lands in which 
interments had been made should be sold, and 
no real estate of any rural cemetery or rural 
cemetery association should be sold otherwise 
than in pursuance of their acts of incorporation, 
nor for any other than cemetery purposes, ex- 
cept as provided by the act, and all acts and 



Sale, Mortgage or Lease. 55 

parts of acts inconsistent with the act were 
thereby repealed. 

This act would appear to apply to cemetery 
corporations, and also to religious corporations 
and municipalities. 

Cemetery Corporations. — A cemetery cor- 
poration created under the Membership Corpor- 
ation Law, or laws repealed thereby, may, by 
Art. I, sec. 13, to a limted extent, sell, mort- 
gage or lease its real property, with leave of the 
court. It is provided by the second paragraph 
of that section that "Except as otherwise pro- 
vided by this chapter, no portion of a cemetery 
or a cemetery corporation which any person 
other than the corporation is obliged to use for 
burial purposes, or in which burials have been 
made, and not lawfully removed, shall be sold, 
mortgaged or leased by the corporation." 

The exception referred to is in the first para- 
graph of sec. 13, which provides that no sale, 
mortgage or lease of real property shall be made 
unless ordered by a vote of two-thirds of the 
directors, or a majority, if the directors are not 
less than twenty-one in number. No real prop- 
erty shall be leased without leave of the court, 



56 Cemetery Law. 

for more than five years, or sold or mortgaged. 
A mortgage may be issued to secure the pay- 
ment of bonds issued or to be issued to different 
persons. The court may grant leave to a mem- 
bership corporation to convey real property with- 
out consideration to another like membership 
corporation. A mortgage without leave of the 
court may be confirmed by the court, and will 
be valid, except as to subsequent purchasers or 
incumbrancers. 

The proceedings for leave to sell are had un- 
der Code Civ. Proc. sees. 3390-7. 

If its by-laws so provide, a portion of its real 
property may, without leave of the court, be 
conveyed to a member for the erection of a cot- 
tage, etc. 

Section 10 of the general Rural Cemetery- 
Law of 1847, ch. 133, has not been repealed. 
It provides that the cemetery lands of any asso- 
ciation formed pursuant to the act, and any 
property held in trust by it under sec. 9 of said 
Act of 1847, shall not be liable to be sold on 
execution, or be applied in payment of debts due 
from any individual proprietor, but that latter 
and his heirs and devisees should hold the same 



Sale, Mobtgage ok Lease. 57 

exempt therefrom as long as the same should 
remain dedicated to the purposes of a cemetery. 

Cemeteries Other than Rural Cemeter- 
ies. — By Laws of 1879, ch. 310, it is provided 
that it shall not be lawful to mortgage land 
actually used for cemetery purposes, or to apply 
it in payment of debts so long as it should be 
continued to be used for such purposes, and that 
when such use should cease, a judgment which 
but for the provisions of the act might be col- 
lected, might, with interest, be collected there- 
out, and that the provisions of the act should 
not apply to the city of Rochester. 

This act does not apply to cemeteries incorpo- 
rated under the General Act of 1847 (People v. 
Pratt, 127 K T. 75), and as that act has been 
substantially re-enacted in the Membership Cor- 
poration Law, would not be applicable to ceme- 
teries incorporated under the latter law 

Reltgioits Corporations. — A religious cor- 
poration shall not sell or mortgage any of its 
real property without leave of the court. Sec, 11 
of Art. I of the Religious Corporations Law, as 



58 Cemetery Law. 

amended by Laws of 1901, ch. 222. The trus- 
tees of an incorporated Protestant Episcopal 
church, shall not vote for the sale, mortgage or 
lease of its real property, unless the rector, 
if it then has a rector, be present, and shall 
not apply to the court for leave to sell or mort- 
gage any of its real property which has been con- 
secrated, or which is used for regular religious 
services by the congregation of such church, and 
the consent of the bishop and standing commit- 
tee must be obtained, as must also the consent 
of the archbishop or bishop of the diocese, or of 
the vicar-general, or administrator in the case 
of incorporated Roman Catholic churches, and 
the petition must set forth that this section has 
been complied with. 

It is provided, however, that no cemetery 
lands of a religious corporation shall be mort- 
gaged while used for cemetery purposes. 

The Code of Civil Proc. sees. 3390-7, provides 
for the procedure on application for leave to sell. 

Private axd Family Cemeteries. — The 
Laws of 1847, ch. 85, provided that lands set 
apart and a portion of which have been used for 
a family or private burying ground, shall not be 



Sale, Mortgage or Lease. 59 

subject to levy and sale by any execution, or 
other legal process whatsoever, and that such 
exemption should not extend to more than one- 
fourth of an acre of land, nor to any building or 
erection, other than a vault, etc., for the dead, 
and that no land should be so exempt, unless the 
owner, before such sale, filed with the clerk of 
the county in which the land was situate, a de- 
scription of the land, made, certified and ac- 
knowledged as deeds are, and said clerk shall 
have recorded same in the proper book for re- 
cording deeds. 

This act has been repealed, and it is now pro- 
vided by the Code of Civil Proc. sec. 1395 that 
land set apart as a family or private burying 
ground, and heretofore designated as prescribed 
by law, in order to exempt the same, or hereafter 
designated for that purpose, as prescribed in the 
next section, is exempt from sale by virtue of an 
execution, upon the following conditions only: 

1. A portion of it must have been actually 
used for that purpose. 

2. It must not exceed in extent one-fourth of 
an acre. 

3. It must not contain, at the time of its de- 
signation, or at any time afterwards, any build- 



60 Cemetery Law. 

ing or structure, except one or more vaults, or 
other places of deposit for the dead, or mortu- 
ary monuments. 

And sec. 1396 provides that in order to desig- 
nate such land to be exempt, a notice containing 
a full description thereof, and stating that it has 
been set apart for a family or private burying 
ground, must be subscribed by the owner, and 
acknowledged, or proved and certified in, like 
manner as a deed to be recorded in the county 
where the land is situate, and recorded in the 
office of the clerk or register of that county at 
least three days before the sale of the land by 
virtue of the execution. 

It is within the discretion of the legislature 
to permit a cemetery association incorporated 
under special act to sell the cemetery land with 
the bodies still in the ground, provision having 
been made for their proper removal to another 
place of interment. If a deed is made, prior to 
removal, it is made subject to the lot owners' 
easement, which could be only extinguished by 
the removal of the bodies. The right to make 
use of the land is restrained until all easements 
are extinguished, but this does not prevent the 
possessing of title subject thereto (Angel v. 



Sale,, Mortgage or Lease. 61 

Methodist Protestant Church, 47 App. Div. 
459). And a statute authorizing the association 
to remove the bodies, is equivalent to a mandate 
to remove them (same case, 463). 

A statute of Minnesota provides that cemetery 
lands used for burial cannot be mortgaged 
(Wolford v. Crystal Lake Cem. Assn., 54 Minn. 
440). 



62 Cemetery Law. 



CHAPTER VII. 

Property in Cemetery Lots. 

The interest winch, a lot owner acquires in his 
lot depends upon the act of incorporation, and 
the terms of the instrument under which title is 
obtained. In some cases a title in fee simple is 
taken (Brick Presbyterian Church, 3 Edw. 
Ch. K T. 155; Windt v. German Reformed 
Church, 4 Sand. Ch. 471 ; Com. v. Mount Mo- 
riah Cemetery Assoc, 10 Phila., Pa., 385), but 
in others an easement only is acquired, the title 
to the land remaining in the association (Buf- 
falo City Cemetery v. Buffalo, 46 N. Y. 504; 
Went v. Methodist Protestant Church, 80 Hun, 
270; Richards v. Northwest Protestant Dutch 
Church, 32 Barb. 42). When the exclusive right 
to burial in a lot is shown by twenty years user 
without objection, and gravestones were marked 
with the initials of defendant's family, and a 
memorandum of the sale of the lot was produced, 
it was held that a sale to defendant of the ex- 



Property in Cemetery Lots. 63 

elusive right to use the lot for burial purposes 
was sufficiently shown (Conger v. Weyant, 28 
K Y. St. Rep, 745, aff'd 132 K Y. 578), and 
no formal deed is necessary, as if to convey the 
fee ; exclusive possession to bury in the lot is all 
that is needed (Conger v. Treadway, 25 X. Y. 
St. Eep. 774, aff'd 132 K Y. 259). 

When, however, a mere receipt is given, thus : 
"Received from John McGuire ten dollars, be- 
ing the amount of purchase money of a grave 
two feet by eight in Calvary Cemetery, with 
privilege to erect a headstone thereon. D. Bren- 
nan, Supt. of Office of Calvary Cemetery" — it 
was held the right acquired was a mere license 
only, and revocable, and that no easement was 
conferred (McGuire v. St. Patrick's Cathedral, 
54 Hun, 207). 

And it was held in Matter of O'Rourke, 12 
Misc. Rep. 248, that the claim of a religious 
corporation against a decedent's estate for the 
balance of the price of a lot purchased by him, 
could not be sustained, as no deed was given, as 
required by the Act of 1881, ch. 501 (re-enacted 
in sec. 7 of the Religious Corporations Law), 
and that the interment of the deceased's re- 
mains therein was not a part performance so as 



64 Cemetery Law. 

to prevent the operation of the Statute of 
Frauds. 

But whether the lot holder acquires an abso- 
lute fee simple, an easement, or a mere license, 
he does so subject to the right of the cemetery 
association to change its location and to remove 
the bodies interred to a new location when cir- 
cumstances require it (Went v. Methodist Pro- 
testant Church, 80 Hun, 271, 11 Abb. Pr. 30; 
Matter of Board of Street Opening, 62 Hun, 
499, aff'd 133 K Y. 329), and if a city passes 
a by-law pursuant to statutory authority prohib- 
iting the interment of dead bodies within cer- 
tain parts of the city, such a by-law is operative 
(Coates v. New York, 7 Cow. 585). If a church 
society has been dissolved, persons who have 
relatives buried in the churchyard may never- 
theless continue to make interments therein, 
even though the church has been abandoned 
(Gumbert's Appeal, 110 Pa. St. 496). 

One who takes a lot in a Catholic cemetery, 
does so subject to the rules of the Catholic 
Church, and he has no right to inter therein the 
body of a person who has not died in commun- 
ion with that church, and accordingly the inter- 
ment of a suicide in such a cemetery will be 



Property in Cemetery Lots. 65 

restrained by injunction (Dwenger v. Geary, 
113 Ind. 114), nor will a mandamus issue to 
compel the interment of one who died a Free- 
mason (People v. St. Patrick's Cathedral, 21 
Hun, 184), and the Catholic Church is the sole 
judge as to the right of burial (McGuire v. St. 

Patrick's Cathedral, 54 Hun, 207). 
5 



66 Cemetery Law. 



CHAPTER VIII. 

Transfer of Cemetery Lots. 

When the special act incorporating a ceme- 
tery does not prohibit a sale or mortgage of his 
lot, a lot owner may convey his interest either 
absolutely or by way of security for a loan. So 
held in the case of Lantz v. Buckingham, 4 
Low. 486, where a mortgage of a lot in Grreen- 
w T ood Cemetery, created under a special act 
(Laws 1838, ch. 297), was held valid. But in 
that case no interments had been made in the 
lot. And it was held subsequently that a mort- 
gage of a lot in the same cemetery, after inter- 
ments had been made therein, was void (Thomp- 
son v. Hickey, 59 How. Pr. Bep. 434). And 
where a man purchased a lot in that cemetery to 
be used as a place of burial for himself and his 
wife, and after several interments had been 
made therein, and the wife had greatly im- 
proved the lot at her own expense, it was held 
she could restrain a sale of the lot by her hus- 



Transfer of Cemetery Lots. 67 

band (Schroder v. Wanzor, 36 Hun, 423). The 
court in that case said: "Good order, public 
decency and a just regard for the repose of the 
remains of the dead, require, under the facts of 
this case, that the judgment from which the ap- 
peal has been taken should be affirmed. " 

As to cemeteries to be acquired by villages 
under the Village Law, there is apparently no 
restriction as to alienation of lots, so long as they 
are used for burials only, as sec. 291 provides 
"for the conveyance thereof to individuals for 
the sole purpose of interments," and "that no 
sale, transfer, or assignment of such lot or any 
interest therein subsequently to the sale by the 
village shall be valid, unless by an instrument 
in writing, signed and duly acknowledged and 
recorded in the office of the village clerk." 

The Town Law also provides (sec. 194) that 
the trustees shall "sell and convey" "burial lots 
on such terms as may be agreed on between the 
parties." 

And the Religious Corporations Law provides 
(sec. 7) that a religious corporation "may sell 
and convey lots in such cemetery for burial pur- 
poses, subject to such conditions and restrictions 
as may be imposed by the instrument by which 



68 Cemetery Law. 

the same was acquired, or by the rules and regu- 
lations adopted by such corporation," and it also 
provides for the recording of such conveyance 
with like effect as of a deed of real property. 

The general Act of 1847, however, prohibited 
alienation of rural cemetery lots, after inter- 
ments. And it is now provided by the Mem- 
bership Corporation Law that as to rural ceme- 
teries, other than those belonging to municipal 
or religious corporations, the use of lots therein 
for burial purposes shall, after an interment 
therein, be inalienable, except that heirs or joint 
owners may release to each other, and the lot 
may, if no burial be made therein, or the bodies 
be removed therefrom, be sold with the consent 
of the corporation, and a lot owner may convey 
or devise his lot to the corporation. (Member- 
ship Corporation Law, sec. 49.) 

On the death of an owner of a lot in a ceme- 
tery owned by a city, or village, or a cemetery 
or religious corporation (Laws 1898, ch. 543, 
sees. 4-5), his title descends to his heirs at law 
or devisees. If, however, he leaves a widow and 
children, they shall have in common the posses- 
sion of the lot during her life. If he leaves a 
widow and no children, she shall have possession 



Transfer of Cemetery Lots. 69 

for life. If he leaves children, and no widow> 
they, or the survivor, shall have possession in 
Common during the life of the survivor. The 
parties having such possession may erect a mon- 
ument and make other permanent improve- 
ments thereon. The widow shall have the right 
of interment for her own body in such lot, or in 
a tomb in such lot, and a right to have her body 
remain permanently interred therein, except 
that her body may be removed therefrom to some 
other family lot or tomb with the consent of her 
heirs. When more than one person is entitled to 
the possession of the lot, the persons so entitled 
shall designate in writing to the clerk of the 
corporation which of their number shall repre- 
sent the lot, and on failure to so designate, the 
corporation shall do so, and shall enter such 
designation of record. The widow may at any 
time release her right in such lot, but no con- 
veyance or devise by any other person shall de- 
prive her of such right. 

-■■ It is further provided by the Membership 
Corporation Law, sec. 49 (which, however, only 
Applies to cemetery corporations created there- 
under, or by the acts thereby repealed), that lots 
shall be indivisible except with the consent of 



70 Cemeteey Laws 

the lot owner and the corporation, and on the 
death of the grantee shall descend to his heirs- 
at-law, or to such of them, or such persons as 
may be designated in the conyeyance to the lot 
owner, and it is provided by sec. 51 thereof that 
a wife, husband, parent, or child of a person 
who has a burial lot may be interred therein 
without the consent of any person having an 
interest therein, subject to the following rules 
and exceptions: 

1. The place of interment in such lot shall 
be subject to the reasonable determination of 
the cemetery corporation or association, or 
their officers or agent having immediate charge 
of interments. This act shall not permit the 
remains of a person not otherwise entitled to 
burial, to be interred in any ground or place, 
contrary to or in violation of the precept, regu- 
lations or rules or usuage of any church or 
other religious society, association or corpora- 
tion. 

2. Any husband or wife living separate from 
the other, and having a burial lot in which the 
other (but for this act) would have no right of 
burial in such lot, and not desiring the remains 
of the other to be interred therein, may file a 



Transfer of Cemetery Lots. 71 

written objection to such interment with the 
cemetery corporation or association, and if so 
filed at least thirty days before the death of 
the other, no right of interment shall be claimed 
or had under the foregoing section. 

3. A parent or child, having a burial lot, in 
which the other would have no right of burial 
but for this act, and not desiring the remains 
of the other to be interred therein, may file a 
written objection to such interment with the 
cemetery corporation or association, and if 
so filed, at least thirty days before the death of 
the other, no right of interment shall be 
claimed or had by such other, under this sec- 
tion; provided that in such case, if the parent 
or child so excluded from burial in such lot, 
should die without having any place of inter- 
ment provided, then the parent or child filing 
such objection shall at once furnish for the 
other a place of burial in some convenient ceme- 
tery ; for the reasonable cost of which the estate 
of the deceased, if any, shall be responsible to 
the person furnishing such grave. 

4. This section does not limit any existing 
rights of burial under other provisions of law. 
Nothing in this act contained, shall limit or 



72 Cemetery Law. 

curtail the right of alienation by the owner of 
a burial lot, under the rules of the cemetery 
corporation or association wherein such lot 
is situated, before the death of the person for 
whose remains the right of burial is provided 
herein, and no right of burial shall accrue to 
any person by reason of this act in any burial lot 
sold by its owner, before the death of the person 
for whose remains the right of burial is pro- 
vided herein. If there be more than one lot 
owner of a lot in the cemetery of a cemetery 
corporation, no body of a dead person shall be 
buried therein without the consent of all the 
owners of such lot, unless such person at the 
time of his death was an owner of the lot, or 
a relative, wife or husband of an owner, or a 
relative of such wife or husband. A dead 
body lawfully buried in a lot in such cemetery, 
may be removed therefrom, with the consent of 
the corporation, and the written consent of the 
owners of such lot, and of the surviving wife, 
husband, children, if of full age, and parents 
of the deceased. If the consent of any such 
person cannot be obtained, or if the corporation 
refuses a its consent, the consent of the County 
Court of the county, or the Supreme Courts 



Tbaesfeb 01^ Cemetery Lots. 73 

at a special term held in the district, where the 
cemetery is situated, shall be sufficient. Notice- 
of the application for the consent of the court, 
must be given at least eight days prior thereto, 
personally, or at least sixteen days prior thereto, 
by mail, to the corporation, or to the person 
not consenting, and to every other person on 
whom service of notice may be required by the 
court. 

As a wife is not heir to her husband, or a 
husband to his wife, it may be desirable, when 
a husband or wife purchases a lot in a cemetery 
incorporated under a special act, or in an unin- 
corporated cemetery not under municipal con- 
trol, to which the laws cited are not applicable, 
arid wishes to provide a right of burial for hi& 
or her surviving partner, to take the convey- 
ance in the joint names of the husband and 
wife, as tenants in common. On the death of 
either, the survivor becomes entitled to an undi- 
vided half of the lot, and the heirs of the dece- 
dent to the other half. Or, if the conveyance 
he made to the husband only, it may provide 
for the interment of the wife therein, and, if 
to the wife only, similar provision may be made 
for the interment of the husband. 



74 Cemetery Law. 

If one wishes to provide for parents, the 
conveyance might (except as to lots in a ceme- 
tery association in which the burial of parents 
is provided for) direct that the parents of the 
proprietor be interred therein. This is the 
more desirable as, even if parents may, in the 
absence of descendants, inherit, they, in certain 
events, under the Real Property Law, sees. 
284-5, will take only a life interest in the lot. 
Or, the conveyance may be taken in the joint 
names of the purchaser and the parents, as ten- 
ants in common, in which case an interest in the 
land will descend to the heirs of the parents. 

It has not yet been decided in New York 
State, whether a widow is entitled to dower in 
a lot belonging to her husband, or a husband 
to curtesy (or a life estate) in a lot belonging 
to his wife. The question can only arise when 
the title was held in fee simple. Under the 
statutes of Missouri (K. S. 1889, sec. 937) 
burial grounds cannot be subjected to claim for 
dower. 

It is provided by sec. 53 of the Membership 
Corporation Law that whenever a person hav- 
ing a lot in a cemetery corporation shall vacate 
the same by a removal of all the dead buried 



Transfer of Cemetery Lots. 75 

threin, and leave such lot in a broken and un- 
improved condition for one month or more, the 
corporation may grade, cut or otherwise change 
the surface, for the improvement of the lot, and 
the general improvement of the cemetery 
grounds, without reducing the area of the lot. 
The expense of such improvement, not exceed* 
ing ten dollars, shall be chargeable to such lot. 
If the owners of such lot, shall not, within six 
months after such expense has been incurred, 
repay such amount to the corporation, the latter 
may sell the lot at public auction on the ceme- 
tery grounds, previous notice of such sale hav- 
ing been posted at the main entrance of such 
cemetery, and mailed to the owners of such lot 
at their last known post-office address, at least 
ten days prior to the day of sale, and shall pay 
the surplus, if any, of the proceeds of such sale, 
over such amount, on demand, to the owners of 
such lot. 



% 6 Cemetery Law. 



CHAPTEK IX. 

Opening Highways Through Cemeteries. 

: In the absence of an express prohibition, gen- 
eral statutes authorizing the taking of lands 
for the purposes of streets and roads, will au- 
thorize the laying out of streets and roads 
through private cemetery lands (Matter of 
Board 1 of Street Opening, 62 Hun, 503, aff'd 
133 1ST. Y. 329). In 1834 a portion of a ceme- 
tery belonging to Trinity Church was taken for 
the extension of Albany street. The land was 
taken under the authority of 2 R. L. of 1813, 
AM, i sec. 107. Although the decision of the 
city of New York to appropriate the land in 
question was not expressly reviewed, the Su- 
preme Court, in Matter of Albany Street, 11 
Wend. 149, hinted that the city had such au- 
thority. Later, under the same law, a portion 
of the cemetery belonging to the Brick Presby- 
terian Church was taken for the extension of 



Opening Highways. 77 

Beekman street, New York City. (Matter of 
Board of Street Opening, 62 Hun, 5C4.) 

And it has been held in Philadelphia, that 
the right to open a street through a cemetery in 
exercise of the right of eminent domain, was 
not abrogated, even though a special act of the 
legislature provided that no street should be 
opened through the cemetery lands. (In re 
Twenty-second Street, 102 Pa. St. 108.) 

But in the case of a public cemetery, special 
authority must be expressly, or impliedly, given. 
(Matter of Board of Street Opening, 133 1ST. Y. 
333; Evergreen Cemetery Association v. New 
Haven, 43 Conn. 234; Wood v. Macon and 
Brunswick E, R. Co., 68 Ga. 539.) 

By Laws of 1847, Ch. 133, sec. 10, as amend- 
ed by Laws of 1877, Ch. 31, it is provided that 
during the time that cemetery lands should re- 
main dedicated to the purposes of a cemetery, 
no street or road should be laid throughout the 
same, without the consent of the trustees, except 
by special permission of the legislature of the 
State. 

The Highway Law (L. 1890, Ch. 568, sec. 1) 
provides that no private road, or highway, shall 
be laid out, or constructed, upon, or through. 



78 Cemeteey Law. 

i 

any burying ground, unless the remains therein 
contained, are first carefully removed, and prop- 
erly reinterred in some other burying ground, 
at the expense of the persons desiring such road 
or highway, and pursuant to an order of the 
County Court of the county in which the same 
is situated, obtained upon notice to such persons 
as the court may direct. 



Taxation of Cemeteries. 79 



CHAPTER X. 

Taxation of Cemeteries. 

Cemeteries were liable to taxation at common 
law. 

But by sec. 10 of the general act as to rural 
cemeteries (Laws 1847, Ch. 133) they were de- 
clared exempt from "all public taxes, rates, and 
assessments." 

It has been held, however, that this section 
does not apply to a city assessment for the con- 
struction of a sidewalk (Buffalo City Cemetery 
v. City of Buffalo, 46 K T. 506). The court 
in that case said : "That public taxes, rates and 
assessments are those which are levied and taken 
out of the property of the person assessed, for 
some public or general use or purpose, in which 
he has no direct, immediate and peculiar in- 
terest; being exactions from him, toward the ex- 
pense of carrying on the general government, 
either directly, and in general, that of the whole 
commonwealth, or more immediately and par- 



80 Cemetery Law. 



ticularly, through the intervention of municipal 
corporations ; and that these charges and imposi- 
tions which are laid directly upon the property 
in a circumscribed locality,, to effect some work 
of local convenience, which in its results is of 
peculiar advantage and importance to the prop- 
erty especially assessed for the expense of it, 
are not public, but are local and private, so far 
as this statute is concerned." 

And even when the plaintiff's charter ex- 
empted it from "all public taxes, rates and as- 
sessments," a cemetery association was neverthe- 
less held liable for the expense of paving a street 
adjoining the cemetery (Buffalo Cemetery As- 
sociation v. City of Buffalo, 43 Hun, 127, aff'd 
118 1ST. Y. 61) inasmuch as the general act of 
1879, Ch. 310, exempting cemeteries from sale 
on execution for tax or assessment, was held 
not to have repealed the local laws applicable to 
the city of Buffalo, making cemeteries liable for 
local assessments. 

By the act of 1879, Ch. 310, referred to in 
the last cited case, it is provided that lands ac- 
tually used for cemetery purposes should not 
be sold under execution, or for any tax or as- 
sessment, that no such tax should be levied, col- 



Taxation op Cemetebies. 81 

lected or imposed ; that when such lands should 
cease to be used for cemetery purposes, a tax or 
assessment which, but for the provisions of the 
act, might be levied or collected, may, with in- 
terest, be collected thereout, and exempting lands 
in the city of Rochester from its provisions. 

The purpose of this act, was to secure to ceme- 
teries not established under the act of 1847, ex- 
emption from taxation, and other immunities 
which they did not before possess. (People v. 
Pratt, 129 K Y. 75.) 

When a statute was enacted prior to the pas- 
sage of the Rural Cemeteries Act, 1847, Ch. 
133, empowering the trustees of St. Patrick's 
Cathedral, New York, to acquire lands in New 
York City, or any neighboring county, for ceme- 
tery purposes, lands thus acquired in Queens 
county, are exempt from taxation, notwithstand- 
ing amendments to the act of 1847, providing 
that the consent of the Board of Supervisors 
should first be obtained, before lands could be 
set apart for cemetery purposes in Queens 
county. (People ex rel. Trustees St. Patrick's 
Cathedral v. Davren, 16 K Y. S. 794, aff'd 131 
K Y. 601.) 

A cemetery organized under the general act 
6 



82 Cemetery Law. 

of 1847. is exempt from taxation, the moment its 
lands are acquired by the association, and will 
continue exempt whilst the association exists, al- 
though the city in which the cemetery is situated, 
has passed an ordinance forbidding further in- 
terments therein. In such a case, if the ordi- 
nance is not repealed, the cemetery should apply 
for a voluntary dissolution. On its failure to do 
so, the attorney-general can institute an action 
for the purpose. (People ex rel. Oak Hill 
Cemetery Association v. Pratt, 129 N. Y. 68 ; 
reversing same case, 14 1ST. T. S. 551, 804.) 

The property of a cemetery corporation is, by 
the tax law, exempted from taxation to a limited 
extent. Sec. 4, subsec. 7, provides : That the real 
property of a corporation organizeed exclusively 
for cemetery purposes, or for the religious., 
pious, charitable, educational, etc., purposes 
mentioned in the act, and used exclusively for 
one or more of such purposes, and its personal 
property, shall be exempt from taxation, unless 
organized for profit, or its officers receive profit 
thereout, beyond reasonable compensation for 
their services. The real property shall be so ex- 
empt if not in actual use, if it is intended to con- 
struct buildings and improvements thereon, and 



Taxation of Cemeteeies. 83 

no profit is derived therefrom, but, otherwise, 
property not in actual use is liable to taxation, 
and the property of an officer of a religious de- 
nomination is exempt to the same extent as that 
held by a religious corporation. 

And the property of a municipal corporation 
held for a public use, except a portion of such 
property not within the corporation, is by sec. 
4, sub. 3, of the Tax Law (Laws of 1896, Ch. 
908) also declared exempt from taxation. 



84 Cemetery Law. 



CHAPTEE XL 

Desecration of Cemeteries. 

An action for damages, may be maintained by 
any person who has the fee to the soil, if entitled 
also to the possession, against one who digs and 
disturbs a grave therein (Bessemer Land and 
Improvement Co. v. Jenkins (Ala.), 18 So. Rep. 
565). And, even when he possesses only an 
easement or license, "he acquires such a posses- 
sion in the spot of ground in which the bodies 
are buried, as will entitle him to action against 
the owners of the fee or strangers who, without 
his consent, negligently or wantonly disturb it. 
This right of possession will continue as long as 
the cemetery continues to be used; but if for 
proper or legal reasons, it should be discontinued 
and the license withdrawn, and the bodies of the 
dead are to be removed, it must be done decently, 
only after due notice to the party entitled, if 
known, and such notice can be given." (Same 
ease, p. 568.) 



Desecbation of Cemeteries. 85 

When the trespass is malicious the injured 
person is entitled to punitive damages (Smith v. 
Thompson, 55 Md. 5), and damages may be also 
given for injuries to the feelings, as in the case 
of the removal of the body of a child (Bessemer 
Land and Improvement Co. v. Jones, 18 So. 
Rep. 565), but in that case $1,700 damages to 
the parents was considered excessive. But when 
a cemetery association, after selling a lot to 
plaintiff, and conveying it to him by deed, re- 
moved the body of plaintiff's child, which had 
been interred therein, without notice to plaintiff, 
and at the request of one to whom it had pre- 
viously sold the lot, but who had not obtained 
a deed therefor, it was held that a verdict of 
$1,150 damages was not excessive. (Thirk- 
field v. Mountain View Cemetery Association, 
12 Utah, 76.) 

A desecration of graves may be also restrained 
by injunction, and the action for trespass, or for 
an injunction, should (when the original pro- 
prietor is dead) be brought by his heir, and it 
is not necessary to aver his ancestor's intestacy. 
(Mitchell v. Thome, 57 Hun, 405; aff'd 134 
1ST. Y. 536; Matter of Brick Presbyterian 
Church, 3 Edw. Ch. ?\ T . Y. 155.) And the ac- 



86 Cemetery Law. 

tion may be so maintained, although the title to 
the ground be in another (Mitchell v. Thome, 
134 M". Y. 539) ; but all of the heirs should join 
in the action, in order to recover damages; one 
or more, however, may by injunction prevent 
the interruption or destruction of their rights* 
(B. C. 542.) 

The removal of bodies from a cemetery, which 
had been dedicated mainly for a burial ground, 
and also for school purposes, by a city, in order 
to adapt the entire lot for a school house, will 
be restrained, as, even if the city had shown 
proper legislative authority, which it did not 
do, it could only remove the bodies to some other 
burial place, and could not use the ground for 
school purposes. (Jeffries v. City of Pitts- 
burgh, 26 Albany L. J. 203.) 

The most effectual and the speediest remedy 
is by injunction. (Same case; and see also 
Beattie v. Kurtz, 2 Pet. 566.) 

Trustees of a cemetery may maintain eject- 
ment against a municipality which had been in- 
corporated out of a township which included the 
cemetery, and which claimed exclusive control 
over it, disposing of burial rights, and managing 



Desecration of CemetepvIes. 87 

it as city property. (Board of Health v. East 
Saginaw,. 45 Mich. 257.) 

By the Penal Code, sec. 311, it is provided 
that any person who removes a dead body from 
a grave or vault, or place where it is awaiting 
burial, without authority of law, with intent to 
sell the same, or for purposes of dissection, or 
for the purpose of procuring a reward for the 
return of the same, or from malice or wanton- 
ness, is punishable by imprisonment not exceed- 
ing five years-, or a fine not exceeding $1,000, or 
both, and sees. 312-13 provide for the case of 
recovering stolen bodies, or opening graves, etc., 
without authority of law. 

It is also a misdemeanor to arrest or attach a 
dead body, sec. 314, or disturb a funeral, sec. 
315. 

If a parent removes a body from a grave for 
the purpose of obtaining evidence as to mal- 
practice, the statute is not violated. (Rhodes 
v. Brandt, 21 Hun, 1.) 

The Penal Code, sec. 647, makes it a misde- 
meanor to wilfully injure a gravestone, monu- 
ment, etc., or a shade tree or ornamental plant 
in a cemetery, or remove flowers, etc., therefrom, 



88 . Cemetery Law. 

and sec. 646, also makes it a misdemeanor to 
kill, wound, or trap any bird, deer, squirrel, rab- 
bit, etc., in, or remove the young of such animal, 
or eggs of such, bird, from a cemetery or public 
burying ground, or expose for sale, or knowingly 
sell, any bird, or animal, so killed, or taken. 



Liens on Monuments, etc. 89 



CHAPTEE XII. 

Liens on Monuments, Gravestones and 
Cemetery Structures. 

Chap. 543 of the Laws of 188 8, was the first 
New York statute giving such a lien. But it 
was declared unconstitutional in Brooks v. Tain- 
tor, 91 Hun, 338 ; 17 Mis. 534, in that it au- 
thorized the taking of property without due pro- 
cess of law, and it was repealed by the Lien Law, 
Ch. 418, of 1897. 

Sec. 40 of the Lien Law provides that a per- 
son furnishing or placing in a cemetery or burial 
ground, a monument or other structure, has 
a lien for the price thereof, with interest, on 
filing a notice of lien with the superintendent. 

Sec. 41 provides that such notice may be filed 
at any time after the completion of the work, 
but within one year after the agreed price be- 
comes due, and must be signed by the lienor and 
verified, and contain the particulars specified in 
the section. The lienor shall within ten daya 



90 Cemetery Law. 

after the filing of such, notice, serve a copy per- 
sonally, or by mail, upon the person with whom 
the agreement was made, and upon the lot 
owner, if his name and residence can with rea- 
sonable diligence, be ascertained. 

The notice must be served on the superintend- 
ent, within the year. The court has no power 
to extend the time beyond that period. (Adler 
v. Lumley, 46 App. Div. 229.) 

Sec. 42 provides that thereafter an action to 
enforce the lien may be maintained, and that 
the judgment may authorize the removal of and 
sale of the monument to satisfy the amount of 
the judgment, and prescribes the procedure on 
such sale. 

Sec. 43 provides for the disposition of the 
proceeds of sale. 

Sec. 44 provides that the superintendent or 
other person in charge of a cemetery or burial 
ground, shall not permit the removal, altera- 
tion or inscription of a monument, etc., after 
sendee of notice of lien, except pursuant to the 
terms of a judgment to enforce such lien, nor 
shall he hinder the removal of such monument, 
etc., in pursuance of such a judgment. 



Cemeteries as Nuisances. 9 1 



CHAPTER XIII. 
Cemeteries as Nuisances. 

When, owing to the growth of a city, a ceme- 
tery becomes a nuisance, and detrimental to the 
health of the citizens, further interments may 
be prohibited therein. And this, although the 
city has itself made a lease of the cemetery to 
the corporation, and covenanted for quiet enjoy- 
ment, as a city has no power to limit its legisla- 
tive discretion by covenant. (Matter of Brick 
Presbyterian Church, 5 Cowen, 538.) 

The legislature has power to prohibit inter- 
ments in, or to remove the dead from, cemeteries 
which, in the advance of urban population, may 
be detrimental to the public health, or in danger 
of becoming so. (Windt v. German Reformed 
Church, 4 Sand. Ch. 471; Richards v. Prot. 
Dutch Church, 32 Barb. 42 ; Brick Church v. 
The Mayor, 5 Cow. 538 ; Coates v. The Mayor, 
7 Cow. 585; Sohier v. Trinity Church, 109 
Mass. 1; Woodlawn Cemetery v. Everett, 11 S 



92 Cemetery Law. 

Mass, 354; Craig v. First Presbyterian Church, 
88 Pa. St. 42 ; Went v. Methodist Prot. Church, 
80 Hun, 266.) 

The charters of cities usually provide for the 
making of city ordinances to regulate the burial 
of the dead. Under the power to regulate, the 
city may prohibit the burial of the dead within 
the city limits. (People v. Pratt, 129 1ST. Y. 
68.) 

By Laws of 1900, Ch. 703, it is provided that 
cities of the third class may prohibit further 
interments in any cemetery in such city, as 
detrimental to public health, and that the action 
of the city may be reviewed by certiorari. 



Abolition op Cemeteries. 93 



CHAPTEE XIV. 

Abolition of Cemeteries. 

When a cemetery completely loses its identity 
as a burial ground, it may be said to be aban- 
doned. "When these graves shall have worn 
away ; when they who now weep over them shall 
have found knidred resting places for them- 
selves ; when nothing shall remain to distinguish 
this spot from the common earth around, and it 
shall be wholly unknown as a grave yard ; it may 
be that some one who can establish a good 
'paper title' will have a right to its possession; 
for it will then have lost its identity as a burial 
ground, and, with that, all right founded on the 
dedication must necessarily become extinct." 
(Hunter v. Sandy Hill, 6 Hill, 412.) 

When, however, a municipal corporation ac- 
cepts, by deed, a plot of ground for the purpose 
of a burial ground, it cannot appropriate the 
burying ground, although for upwards of fifty 
years prior to the commencement of an action 



94 Cemetery Law. 

to restrain the city from such an appropriation, 
all burials, except of new-born infants, had been 
prohibited therein, and although for upwards of 
forty years burials had been very infrequent. 
(Eosseau v. The City. of Troy, 49 How. Pr. 
492.) 

And when, although an agreement from the 
original owner conveys the fee of lands for ceme- 
tery purposes, it appears it is executory, the 
grantees having agreed to pay $40 for each lot 
of 400 square feet sold, and no lots having been 
sold, the grantee, a cemetery corporation, had no 
interest which could be taken in execution, and 
the heirs of the grantor may recover the lands 
from an execution creditor, although thirty 
years have elapsed from the grant. (Bennett 
v. Culver, 97 K T. 250.) 

When a church corporation owns a cemetery 
in fee, and has not sold the lots therein, it may 
sell the cemetery lands, and cannot be restrained 
by injunction by persons, having relatives in- 
terred therein, from removing the remains of 
deceased persons to another cemetery. (Windt 
v. German Reformed Church, 4 Sand. Ch. R, 
471.) 

The Laws of 1895, Ch. 149, provide for the 



Abolition oe Cemeteries. 95 

dissolution of a rural cemetery corporation and 
sale of its land, upon proving, to the satisfaction 
of the Supreme Court of the district, that all 
bodies have, with the lot owners' consent, been 
decently removed, and that all parties consent, 
and that its debts have been paid. 

The Laws of 1897, Ch. 538, also provide for 
the sale of land belonging to rural cemetery asso- 
ciations from which bodies have, with the con- 
sent of the former owners of the lots, been re- 
moved, upon proving to the satisfaction of the 
Supreme Court of the district that such bodies 
have been decently reinterred in some other 
cemetery ; that the lots have been reconveyed to 
the cemetery association, and are not used for 
burial purposes; that burials have been pro- 
hibited; that all parties have consented, and 
that the association's debts have been paid. 



90 Cemetery Law. 



CHlPTEE XV. 

Undertakers, Embalmers and Burials. 

Undertakers. 

The word undertaker had its origin from the 
fact that the pioneers of the calling undertook 
to perform the entire duty of burial. 

When an undertaker receives a dead body for 
safe keeping from those who are legally entitled 
to the right of burial, he will be held responsi- 
ble in damages for allowing them to go out of 
his possession without the consent or authority 
of the parties who entrusted the remains to him. 
In 1884, in the city of Indianapolis, a husband 
and wife employed a firm of undertakers to take 
charge of their daughter's remains until such 
time as they might be ready to inter the same. 
A few months afterwards they notified the un- 
dertakers that they desired to have their child 
interred. The undertakers then discovered that 
the body had been shipped by mistake to some 



UNDEIiTAKEBS, EmBAEME&S, ETC. 97 

point for interment, which they subsequently 
found to be in Ohio ; and although they notified 
the plaintiffs and brought back the remains at 
their own expense, and delivered them to plain- 
tiffs five days after the latter began action, they 
were, nevertheless, mulcted in several hundred 
dollars damages, the court holding that, inde- 
pendently of the contract between the parties, 
the right to the control and burial of the corpse 
w r as in the next of kin, in the absence of testa- 
mentary disposition, and not in the executor, and 
that in assessing the damages, the jury might 
consider the mental anguish suffered by plain- 
tiffs. (Kenihan v. Wright, 125 Ind. 536.) 

It has been held in Massachusetts that a city 
board of health, under a statute authorizing it to 
make regulations concerning burial grounds and 
interments, may provide that no person except 
the superintendent of the cemetery, or a duly 
appointed undertaker, may remove a dead body 
from a house to a place of burial, under a pen- 
alty of not exceeding twenty dollars, and, on a 
complaint by the city, an undertaker, whose ap- 
pointment had been revoked, was found guilty 
of unlawfully removing two dead bodies from a 
house in the city of Lawrence for the purpose 




98 Cemetery Law. 

of burial. (Commonwealth v. Goodrich, 13 
Allen, 546.) 

By sec. 5, Art. 1 ; of the Public Health Law, 
Ch. 661, of 1893 (as amended by Laws of 1901, . 
Ch. 29), provision is made for the registration 
of births, marriages and deaths in the State de- 
partment of health, and that the commissioner 
of health shall prescribe rules, forms, etc., as to 
transfer permits by local boards of health for the 
transportation of corpses for burial outside the 
county where death occurred, and the use of 
such permits. He shall require a coupon to be 
attached to every such permit, to be detached 
and preserved by every common carrier, or per- 
son in charge of any vessel, car or vehicle, to 
whom any such corpse shall be delivered for 
transportation. 

And sec. 22, Art. 2, thereof provides for the 
supervision by local boards of health of the reg- 
istration of all births, marriages and deaths oc- 
curring within the municipality, and the cause 
of death, and the finding of coroners' juries in 
accordance with forms, etc., prescribed by the 
State department of health. 

By the Public Health Law (Laws of 1893, 
Oh. 661, sec. 23, as amended by Laws of 1899, 



Undertakers, Embalmeiis, etc. 09 

Ch. 211) it is provided that every local board 
of health shall prescribe sanitary regulations for 
the burial and removal of corpses, and shall des- 
ignate the persons who shall grant permits for 
such burial, and permits for the transportation 
of any corpse for burial outside the county. 
Every undertaker, sexton or other person having 
charge of any corpse, shall procure a certificate 
of the death, and the probable cause, certified 
by the physician in attendance upon the deceased 
during his last illness, or by the coroner where 
an inquisition is required by law, and if no 
physician was in attendance, and no inquest has 
been held, or required, an affidavit stating the 
circumstances, time and cause of death, and 
sworn to by some credible person known to the 
officer granting the permit, and there shall be no 
burial or removal of a corpse until such certifi- 
cate or affidavit has been presented, and a permit 
obtained. When application is made for a per- 
mit to transport a corpse over any railroad, or 
upon any passenger steamboat within the State, 
the board of health, or the officers to whom such 
application is made, shall require such corpse 
to be inclosed in a hermetically sealed casket 
of metal or other indestructible material, if the 
LofC. 



100 Cemetery Law. 

cause of death shall have been from a conta- 
gious or infectious disease. 

Embalmers. 

In ISTew York State, the vocation of an em- 
balmer is generally allied with that of an un- 
dertaker. In 1898 the legislature established 
a State board of embalmers. The Laws of 1898, 
Ch. 555, provide that after the 1st of July, 
1898, there should be a board of embalming ex- 
aminers in the State of New York, consisting 
of five members, all of whom must have had at 
least five years' experience as practical em- 
balmers. The board shall, from the opinions 
of five well-known physicians, prescribe the 
using, before embalming, of such tests as they 
deem necessary, to ascertain whether life is ex- 
tinct. The board is authorized to issue sub- 
poenas, and administer oaths to witnesses, and to 
make rules to regulate the practice of embalm- 
ing, subject to the approval of the State board 
of health. !-:•. 

Sec. 4 (as amended by Laws of 1899, Ch. 
324) provides that persons engaged as em- 
balmers on 23rd April, 1898, might be regis- 



Undertakers, Embalmers, etc. 101 

tered and licensed as embalmers on making ap- 
plication as provided, before the 1st September, 
1899. 

Sees. 5 and 6 provide for the examination of 
persons, desiring, after the passage of the act, 
to become embalmers, and, on the recommenda- 
tion of the State board of health, for the licens- 
ing and registration of such persons as embalm- 
ers of human dead bodies, on payment of the 
fee ($15) imposed in the act, the license to be 
registered at the office of the board of health of 
the city, town or place where it is proposed to 
carry on the business, and to be displayed in a 
conspicuous place in the office, etc., of the li- 
censee. 

Sec. 7 provides that no license shall be assigna- 
ble, except that the section shall not apply to any 
personal representative of a deceased licensed 
embalmer, who engages in the business of under- 
taking and embalming with a duly licensed em- 
balmer. 

Sec. 9 provides that no persons, except those 
licensed under the act, and except licensed phy- 
sicians, surgeons, commissioned medical officers 
in the army of the United States, or in the 
United States Marine Hospital service, and the 



102 Cemetery Law, 

resident medical staff of an incorporated hospi- 
tal, shall practice as embalmers. 

Sec. 10 provides that any violation of sec. 9 
or of the rules and regulations made and pre- 
scribed by the act, shall be a misdemeanor. 

Burials. 

The right to bury a corpse is a legal right, 
vested, in the absence of testamentary disposi- 
tion, exclusively in the next of kin, and includes 
the right to select and change the place of inter- 
ment. (Matter of Brick Church, 3 Edw. 135; 
Matter of Beekman St., 4 Bradford, 503.) 

It is the right of every person to have decent 
'burial after death. The necessary and proper 
expenses of burial are a charge upon his estate, 
and the duty of burial primarily rests upon the 
personal representatives, but it is the duty of 
any person, under whose roof a dead body lies, 
to see that it has decent burial. But, except in 
the case of one who intermeddles officiously, the 
estate of the decendent is finally liable for the ex- 
pense, and, although a husband is bound to bury 
the corpse of his wife, and may be sued for the 
expense of same by one who, by reason of his 



UNDERTAKERS, EMBALMEKS, ETC. 103 

neglect ; or absence, incurs the cost of such inter- 
ment; he is entitled to be reimbursed the amount 
thereof out of her personal estate. (McCue v. 
Garvey, 14 Hun, 562; Griffin v. Condon, 18 
Mis. 236.) 

When, however, the employer of a decedent 
informed an undertaker that he had $300 of the 
decedent's money, and that; if the latter's son 
would not pay the funeral expenses out of $125 
insurance he was entitled to receive, he, the em- 
ployer; would pay same, the employer was prop- 
erly held liable to pay the undertaker's bill of 
$127; the defendant's promise being original, 
and the Statute of Frauds having no application. 
(Griffin v. Condon; 18 Mis. 236.) 

As between the husband and the next of kin 
of a deceased wife, the husband has the right 
to select her burial place. (Johnston v. Mari- 
nus; 18 Abb. K Cas. 72.) 

When a widow has properly interred the body 
of her deceased husband; she can restrain a son 
by a former wife, from removing them to an- 
other place of interment. (Secor v. Seeor, 18 
Abb. K C. 78.) 

The court will determine upon equitable 
grounds, a controversy between a widow and son 



104 Cemetery Law. 

as to a decedent's place of burial. As whilst 
there is property in the burial lot, and in the 
shroud, ornaments, etc., there is none in the re- 
mains themselves. In such case, the remains 
were allowed to be interred in the cemetery 
where decedent's first wife and his children were 
buried in preference to a cemetery selected by 
the widow by whom decedent had no children. 
(Snyder v. Snyder, 60 How. Pr. Kep. 372.) 

Although adult relatives of a decedent who 
are not his next of kin, should, when the next 
of kin are minors., see to the proper burial of 
their relative (Copper's case, 7 Abb. 1ST. C. 121) 
they cannot, when the right to burial in a par- 
ticular place depends upon a contract made by 
deceased, enforce same. Such rights can only 
be enforced by those to whom they have de- 
scended. (People v. Coppers, 21 Hun, 196.) 

A church has no right to the custody or control 
of the body of a member of it, (In re Donn, 
14 iST.Y. S. 189), in which case it was held, how- 
ever, that a decedent who was a Catholic, and 
buried at her request in the consecrated ground 
of a Catholic Church (her husband, although of 
a different belief, consenting) equity would not, 
at the instance of her children, compel the 



XJjST-DEKTAKEBS^ EmBALMERS, ETC. 105 

church to permit the removal of the body for 
interment beside her husband, who was interred 
in a non-Catholic cemetery. 

Funeral expenses have priority over every 
other claim against a decedent's estate, and the 
duty of burial devolves upon the executor, who 
is liable to one, who from necessity, pays the ex- 
penses. (Patterson v. Patterson, 50 iST. Y. 
574; Matter of Miller, 4 Eedf. 302; Eappalzea 
v. Russell, 1 Daly, 214; Ferrin v. Myrick, 41 
K Y. 315; Kessell v. Hupen, 8 K Y. St. Eep. 
352.) 

An undertaker is entitled to be paid in full, 
when he furnishes funeral requisites suitable to 
deceased's rank in life from his knowledge of 
the apparent condition of deceased's property, 
and, is entitled to be paid in full, even although 
the estate is insolvent. (Matter of Rooney, 2 
Red. 15.) 

It is now provided by Code of Civ. P roc, sec. 
2729, subd. 3 (as added by Laws 1901, Ch. 293) 
that every executor or administrator shall pay 
out of the first monies (of the estate") received, 
the reasonable funeral expenses of decedent, and 
the same shall be preferred to all debts and 
claims against decedent, and if the same be not 



106 Cemetery Law. 

paid within sixty days from grant of letters, 
a summary proceeding by petition and citation 
is provided to compel the executor to pay out of 
the monies so received the reasonable amount of 
same, and for the renewal of such an applica- 
tion from time to time if the executor shall not 
have received sufficient means to defray same at 
the time of the application. 

This provision is of great advantage to under- 
takers who are often obliged to wait for a con- 
siderable period before settlement of their 
claims for funeral expenses. 

It is further provided by the same section 
that if the executor shall not pay a sum so al- 
lowed by surrogate for funeral expenses, he shall 
not be allowed for debts of decedent until such 
claim is paid, but such claim shall not be paid 
before the expenses of administration are paid. 
It is provided that the act shall not take effect 
till September 1, 1901. 

Burials. 

A person may by his last will provide for the 
disposition of his body after death. (Matter of 
Beekman, 4 Brad. 503.) And this right is now 



Undertakers, Embalmers, etc. 107 

recognized by statute, Penal Code, sec. 365 
of which provides that a person has the right to 
direct the manner in which his body shall be 
disposed of after his death, and also to direct 
the manner in which any part of his body which 
becomes separated therefrom during his lifetime 
shall be disposed of, and the provisions of Penal 
Code, Ch. 6, as to burial, dissection, etc., will 
not thereupon apply when they are inconsistent 
with such direction. 

By sec. 206, it is provided that except in cases 
where a right to dissect is expressly conferred 
by law, every dead body of a human being must 
be decently buried within a reasonable time after 
death, but a body may be carried through the 
State, or removed for interment elsewhere (sec. 
307.) 

Sees. 308-9-10 provide for dissections and 
burial after dissections. 



FORMS. 



No. 1. 

Certificate of Incorporation of a Ceme- 
tery Corporation for Purposes of Profit, 
Under the Business Corporations Law. 

The undersigned natural persons of full age, 
being desirous of becoming a stock corporation 
for cementery purposes under the Business Cor- 
porations Law, hereby make, sign, acknowledge, 
and file this certificate in the office of the Secre- 
tary of State and the clerk of the county of 
(state name of county in which office of the cor- 
poration is to be located) in pursuance of sec. 
2 of the Business Corporations Law. 

1. Two-thirds of the undersigned are citizens 
of the United States., and one of them is a resi- 
dent of the State of New York. 

100 



110 Cemetery Law. 

2. The name of the proposed corporation is 
(state name of proposed corporation). 
• 3. It is intended to form it for cemetery or 
burial purposes. 

4. The amount of its proposed capital stock 
is $ of which $ shall be pre- 
ferred stock (state different classes, if any). 

5. The number of shares of which the capital 
stock shall consist is shares, each of 
the value of $ (not less than $5 or more 

"than $100). 

6. The amount of the capital with which said 
corporation shall begin business is $ 

(state amount of capital — not to be less than 
$500). 

7. The place where the principal business 
office is to be located is (state name of city, vil- 
lage or town where principal business office is 
to be located). 

8. The duration of the proposed corporation 
shall be (state duration of intended corporation 
— if without a limit, state for an indefinite pe- 
riod). 

9. The number of its directors is (state num- 
ber not less than three). 

10. The names and post-office addresses of the 



Forms. Ill 

directors for the first year, two of whom are 
residents of the State of New York, are (here 
state names and post-office addresses of directors 
for first year). 

11. The names and post-office addresses of the 
subscribers to this certificate, and the number 
of shares of stock which each agrees to take in 
the corporation are as follows: (State names, 
post-office addresses of, and number of shares of 
stock taken by each subscriber to the certificate, 
thus: 

Names. P. O. Addresss. No. of shares of stock 

I taken. 

(It is not necessary that all the subscribers 
should sign the certificate. Yonkers Gazette 
Co. v. Taylor, 30 App. Div. 334.) 

(State any other provision for the regulation 
of the business and the conduct of the affairs of 
the corporation, and any limitation upon the 
powers of its directors and stockholders which 
does not exempt them from any obligation, or 
from the performance of any duty imposed by 
law. The certificate may provide for cumula- 
tive voting at elections of directors (Genl. Corp. 
Law, sec. 20), and may also provide for acquir- 
ing stock of other corporations.) 



112 Cemetery Law. 

In witness whereof we have on this day 

of , 190 , signed this certificate 

and a duplicate thereof to be filed as aforesaid. 
(Here the proposed incorporators, not less than 
three in number, will sign.) 

On this day of , 190 , be- 

fore me personally came (here give names of 
sigatories to certificate) personally known to me 
to be the persons named in and who signed the 
foregoing certificate, and severally acknowledged 
to me that they subscribed the same for the pur- 
poses therein mentioned. 

(Signature of notary.) 

(Note. — The tax of one-twentieth of one per 
cent, of the capital stock must be paid to the 
State Treasurer before filing of certificate. 
Tax Law, sec. 180, as amended by Ch. 448 of 
Laws of 1901. Fee on filing in Secretary of 
State's office ten dollars. (Laws 1891, Ch. 683, 
sec. 26; as amended in 1897, Ch. 411.) Secre- 
tary of State for recording certificate, 15 cents 
per folio of 100 words (Laws 1892, Ch. 683.) 
Fee on filing in County Clerk's office, 6 cents; 
recording in same office 10 cents per folio. 
(Code Civ. Proc. sec. 3304.) 



Forms. 113 

No. 2. 

Certificate of Incorporation of a Ceme- 
tery Corporation Under Membership Cor- 
poration Law. 

The undersigned natural persons of full age, 
being desirous of becoming a cemetery corpora- 
tion under the provisions of the Membership 
Corporation Law (Art. 3) hereby make, ac- 
knowledge, and file in the office of the Secretary 
of state, and of the clerk of the county (county 
in which cemetery or a part thereof is to be sit- 
uated) as required by sec. 41 thereof, and sec. 
4 of the General Corporation Law, viz. : 

1 . Two-thirds of the undersigned are citizens 
of the United States, and one of them is a resi- 
dent of the State of New York. 

2. The cemetery of said corporation is to be 
situated (state name of county, town, city and 
village in which such cemetery, or any part 
thereof, is to be situated). 

3. The name of such proposed corporation is 
(state name). 

4. The time of Holding the annual meeting 
of such corporation shall be (state day of month 

8 



114 Cemetery Law. 

when the annual meeting is to be held) in each 
year. 

5. The number of the directors of the pro- 
posed corporation shall be (state the number of 
the directors, which must be either six, nine, 
twelve or fifteen). 

6. The names of the persons to be directors 
until others are elected in their places, divided 
into three equal classes, each to hold office until 
the first, second and third annual meetings re- 
spectively are : 

(a) to hold office until the first meeting (state 
names of one-third of the directors). 

(b) to hold office until the second annual 
meeting (states names of one-third of the di- 
rectors). 

(c) to hold office until the third annual meet- 
ing (state names of one-third of the directors). 

7. (The following may be specified at the op- 
tion of the promoters.) Out of the surplus pro- 
ceeds of sales of lots, after payment of the pur- 
chase price of the real property of said proposed 
corporation, it is intended to invest — per cent, 
as a permanent fund, the income of which shall 
be used for the improvement, preservation and 



Fokms. 115 

embellishment of the cemetery grounds, and for 
no other purpose. 

In witness whereof we have on this . day 
of in the year 19 ? signed this certifi- 

cate and a duplicate thereof to be filed as afore- 
said. 

(Here the proposed incorporators, not to be 
less than seven in number, will sign.) 

State of New York, ) 7 

( ss. : 

County of j 

On this day of 19 , before 

me personally came (here give names of signa- 
tories), personally known to me to be the persons 
named in and who signed the foregoing certifi- 
cate, and severally acknowledged to me that they 
subscribed the same for the purposes therein 
mentioned. 

(Signature of notary.) 

(The approval of a justice of the Supreme 
Court must be endorsed or annexed thus) : 

I hereby approve of the foregoing (or within) 
certificate. 

(Signature of justice of the Supreme 
Court.) 



110 Cemetery Law. 

(Fee on filing in the Secretary of State's 
office, 1 5 cents per folio of 100 words ; in County 
Clerk's office, 6 cents per folio; recording, 10 
cents per folio.) 



No. 3. 
Certificate of Incorporation of Private 
Cemetery Corporation Under the Member- 
ship Corporation Law (sec. 56). 

The undersigned, the 

chairman, and , secretary, 

of a meeting of proprietors of land set off for 
a private cemetery by at least seven of said pro- 
prietors, held on the day of , 
1901, in accordance with the provisions of the 
Membership Corporation Law, sec. 56, do sign 
and acknowledge and file in the office of the 
clerk of the county in which said lands are situ- 
ate, a certificate as follows: 

1. Seven at least of the proprietors of said 
land so set off were present at said meeting, and 
three of their number were selected to be direct- 
ors of the proposed private cemetery corpora- 



Forms. 117 

rtion for five years. The names and addresses 
of such directors are as follows : (Give names 
and addresses of directors). 

2. The name of the proposed private ceme- 
tery corporation is (state name of proposed cor- 
poration). 

3. The lands so set apart contain (give area, 
not more than three acres) , and are bounded, 
described and situated as follows : (Describe 
lands set apart). 

4. (If the facts be so, state as follows:) 
No portion of said land is within one hun- 
dred rods of any dwelling house. 

(Or if otherwise, and owner's written consent 
has been obtained, state in the alternative.) 

5. As portion of said cemetery is located 
within one hundred rods of a dwelling house, 
the written consent of the owner of said house 
to such location has been obtained, and is hereto 
annexed, and made a part of this certificate. 

Dated this day of , 190 . 

Chairman. 
Secretary. 



118 (Jemeteey Law. 

(Add certificate of acknowledgment as in 
form 1.) 

(Fee on filing in County Clerk's office, 6 cents 
and 10 cents a folio.) 

Consent of owner to annex to certificate 
(form ]STo. 3), where cemetery is located within 
one hundred rods of his dwelling house: 

I consent to the location within one hundred 
rods of my dwelling house, situate at (describe 
situation), in the county of , of the 

cemetery of the proposed private cemetery cor- 
poration to be known as (give name of cemetery 
corporation). 

Dated 190 . 

(Signature of owner.) 
State of jSTew York, 
County of New York, ss. : 

On this day of , 1901, before 

me came (owner's name), to me known to be 
the person described in and who signed the fore- 
going consent, and he acknowledged to me that 
he executed the same. 

(Notary.) 



Forms. 119 

No. 4. 

Certificate of Incorporation of an Un- 
incorporated Cemetery, Pursuant to Secs. 
61-3, Membership Corporation Law. 

The undersigned, natural persons of full age, 
two-thirds of them being citizens of the United 
States, and one of them a resident of the State 
of New York, and being at least three of the 
owners of lots in an unincorporated cemetery, 
desirous of becoming a cemetery corporation 
pursuant to secs. 61-3 of the Membership Cor- 
poration Law, do certify: 

1. That not less than three of the owners of 
lots in said cemetery caused a notice to be posted 
in at least six conspicuous places in the (de- 
scribe location of cemetery — city, town or vil- 
lage) where such cemetery is located, and pub- 
lished once in each week for three successive 
weeks in a newspaper (if any) published in said 
municipality, a notice mentioning that at the 
time and place specified in such notice, a meet- 
ing of the owners of lots in such cemetery should 
be held to determine upon the question of incor- 
porating such cemetery, pursuant to Article 



120 Cemetery Law. 

three of the Membership Corporation Law. 
Such notice, with an affidavit of the posting 
thereof, and an affidavit of its publication in 
such newspaper, are hereto annexed. 

2. That such meeting was held at a conven- 
ient place in the (city, town or village) in which 
such cemetery is located on the day of 

,19 , being not less than twenty-five 
nor more than thirty days after the first posting 
and publication of the notice of the meeting. 
That and 

were selected as chairman and secretary of said 
meeting by the persons entitled to vote thereat. 

3. The persons entitled to vote at such meet- 
ing, either in person or by proxy, then deter- 
mined by ballot the question whether or not the 
owners of lots in such cemetery should organize 
as a corporation pursuant to Article three of the 
Membership Corporation Law, and a majority 
of such ballots were in favor of such proposition. 

4. That thereupon the persons entitled to vote 
at such meeting, in person or by proxy, selected 
the undersigned three lot owners in such ceme- 
tery to incorporate in pursuance of Article three 
.of the Membership Corporation Law. 

(Here add the other particulars specified in 



Forms. 121 

form No. 2, except that the corporation shall 
not be required to have more than three direct- 
ors, and add certificate of acknowledgment as in 
form No. 2.) 

Notice of Meeting, 

Take notice, that a meeting of the owners of 
lots in the (give name of unincorporated ceme- 
tery) will be held at (mention a convenient 
place in the city, town or village in which the 
cemetery is located) on the day of 

19 , at o'clock in the noon (insert 

a date not less than twenty-five nor more than 
thirty days from the first posting and publica- 
tion of the notice), to determine upon the ques- 
tion of incorporating such cemetery pursuant 
to Article three of the Membership Corporation 
Law. 

Dated this day of , 18 . 

(At least 
three to 
sign.) 

Owners of lots in said cemetery. 



122 Cemetery Law. 

Affidavit of posting. 

State of New York, 

County of ss. : 

, being duly sworn, de- 
poses and says that lie is aged years and up- 
wards. That on the day of , 
19 , he posted in six conspicuous places in the 
(city, town or village) where the ceme- 
tery is located, the said places being as follows 
(describe them), a copy of the annexed notice, 
which he received for the purpose from 

, one of the signatories thereto, on 
behalf of the remaining signatories. 

(Deponent's signature.) 
Sworn to before me this 
day of , 1900. 

(Notary's signature.) 

Affidavit of Publication. 

State of New York, 

County of ,ss. : 

being duly sworn, de- 
poses and says that he is (proprietor or foreman 
printer) of the new&- 



Forms. 123 

paper published in and circulating in the (city, 
town or villege where cemetery is located) where 
the cemetery mentioned in annexed notice is 
located. That a copy of said notice was re- 
ceived by deponent from , one 
of the signatories thereto, on behalf of the other 
signatories, for the purpose of publication in 
said newspaper. That said notice was published 
in said newspaper once a week for three succes- 
sive weeks, the first publication being made on 
the day of , 18 . 

(Signature.) 
Sworn to before me this 

day of , 19 

(Notary.) 

Certificate of Justice. 

I approve of the foregoing (or within) cer- 
tificate. 
(Signature of a justice of the Supreme Court.) 

(Fees on filing in the office of the Secretary 
of State and of the clerk of the county where 
cemetery is situate, the same as in the case of 
incorporating a cemetery corporation. See form 
2. If the title to the cemetery shall have previ- 



124 Cemetery Law. 

ously vested in the town, the directors will pro- 
cure from the supervisor of the town a deed to 
the corporation releasing all interest of the town 
therein. Sec. 63 of Membership Corporation 
Law.) 



No. 5. 

INCORPORATION OF A FAMILY CEMETERY. 

(a) Deed of Dedication. 

Know all men by these presents that I, 

, of , in the county 

of , do hereby, in pursuance of 

sec, 57 of the Membership Corporation Law, 
dedicate the following described lands to be used 
exclusively as a family cemetery, by the name 
of , for my own family 

(and of the families of , if 

it is intended to extend the benefit of the ceme- 
tery to more than one family), viz. : (Describe 
lands, which must not be more than three acres 
in extent). 

The said lands are not located within one hun- 



Forms. 125 

dred rods of a dwelling house (if the fact be so ; 
otherwise add) The said lands are located with- 
in one hundred rods of the dwelling house of 

, whose consent to such 
location is hereto annexed. 

( The following may be added at the option of 
the dedicator. 

I hereby appoint the following persons, viz. : 
(describe them) to be directors to manage such 
cemetery during their lives or until resignation 
(or specify shorter period). 

I direct that on the death, resignation, refusal 
or inability to act of any of said directors, his 
successor shall be chosen by the remaining di- 
rectors, or a majority of them, preference in 
such choice being primarily given to members 
of my own family, and in the next place to the 
families of (or the 

deed may direct anv other method of creatine: 
successors), and such successor shall hold office 
during life, or until death, resignation, refusal 
or inability to act as aforesaid. 

T direct that there shall be paid out of my 
property the annual sum of to said 

directors and their successors, to be expended 
by them in maintaining, improving and embel- 



126 Cemetery Law. 

lishing said cemetery, on their giving bond to 
the surrogate of the county of as 

required by sec. 57 of the Membership Corpora- 
tion Law. 

And I direct that the said directors shall 
adopt the following by-laws for the manage- 
ment of said cemetery: (specify them, or spec- 
ify any other method by which money or per- 
sonal property is to be given to directors for 
such purpose, and specify particulars of im- 
provements, etc., if desired). 

Dated this day of , 19 . 

(Signature.) [L. S.] 

(Add acknowledgment.) 



(b) Will Dedicating Land. 

I, , do hereby, by 

this, my will, in pursuance of sec. 57 of the 
Membership Corporation Law, (here follow 
the preceding form a, except that the fund 
for improving the cemetery should not exceed 
10 per cent, of testator's estate after payment of 
his debts. The will may appoint executors and 
direct them to effectuate testator's purpose, and 



Forms. 127 

should be executed in presence of two witnesses, 
in accordance with the statutory requirement). 

(Add attestation clause.) 

(Annex affidavit of one of the witnesses and 
notary's certificate identifying such witness.) 

(c) Authority of Heirs. 

The undersigned heirs, next of kin, devisees 
and legatees of in the 

county of , deceased, and 

the undersigned , general 

guardians of an infant heir, etc., of said de- 
ceased, hereby authorize 

, the executors, administra- 
tors or trustese (as the case may be) of said 
decedent, to dedicate the following described 
lands for a family cemetery by the name of 
, for the family of said decedent, 
and in which the remains of said decedent are 
to be interred: (describe lands, not more than 
three acres, and add as to location near a dwell- 
ing house; see previous forms), or to purchase 
out of the funds under their control suitable 
lands to be dedicated by them for such purpose, 
not exceeding three acres, and we also authorize 



128 Cemetery Law. 

them to pay to the directors of such cemetery 
(specify money or personal property) for im- 
proving, maintaining and embellishing the same 
as gollows: (Give particulars). 

Dated, etc. 

(Add notary's certificate.) 

(d) Executors 7 Deed of Dedication. 

(Use form a, making necessary changes. 

(e) Acceptance by Directors. 

We, the undersigned, (give directors' names 
and addresses), accept the appointment of di- 
rectors of the family cemetery to be known as 

, conferred upon us by 
the annexed instrument of dedication. 
Dated, etc. 

(Directors' signatures.) 
(Add notary's certificate.) 

Note.— All the foregoing instruments are to 
be filed in the office of the county where the 
cemetery is situated, and thereupon the ceme- 
tery becomes incorporated by the name expressed 



Forms. 129 

in the dedication. Fees on filing, 6 cents on 
each instrument, and 10 cents per folio. 

The directors shall give bond to the surrogate 
and file an annual account with him of receipts 
and expenditures, with vouchers. 



No. 6. 



Deed oe a Cemetery Lot by a Cemetery 
Incorporated Under the General Laws. 

Know all men by these presents, that the 
Cemetery, in consideration 
of dollars to it paid, hereby grants 

unto , his heirs and assigns 

forever, the use of the following described lot 
designated on the map filed in the office of said 
corporation, situate in Cemetery 

in the town of , county of 

and State of New York, viz. : 

To hold to said , his heirs, 

and assigns forever, to be used as a place of 
burial for the dead forever (or the conveyance 
of a lot in a membership corporation may desig- 



130 Cemetery Law. 

nate any particular person or persons to whom 
the lot shall descend on the death of the grantee 
— sec. 49, Mem. Corp. Law). Subject to the 
provisions of the acts under which said ceme- 
tery was incorporated, and to the by-laws, rules 
and regulations made or to be made, in conform- 
ity therewith. 

In the case of Catholic cemeteries, add "This 
conveyance is also made expressly subject to the 
canons, rules and decrees of the Catholic Church 
respecting the burial of the dead.") 

In witness whereof, the said 
Cemetery has caused this instrument to be 
signed by its president and secretary, and its 
corporate seal to be hereunto affixed, this 
dav of , 19 . 



1 




President. 


Secretary. 
Corporate 
(Seal.) 






State of New York, 
County of 

On this dav of 


f ss. 


,19 , before 



Forms. 131 

me personally appeared , to 

me personally known, who being by me duly 
sworn, says that he is a resident of the county 
of , town or city of ; that 

, who is president of 
Cemetery, and deponent, who is secretary there- 
of, executed the foregoing deed by authority of 
the board of directors or trustees of said cor- 
poration; that deponent knows the corporate 
seal of said corporation ; that the seal affixed to 
the foregoing deed is said seal, and was so af- 
fixed by authority of the said board. 

Notary. 



No. 7. 



Transfer of a Lot ra a Cemetery Incor- 
porated Under the General Laws. 

Note. — The previous form may be used, 
making the lot owner the grantor, and adding 
the form of acknowledgment applicable to an 
individual. In the case of a membership cor- 
poration cemetery, the use of a lot can be only 
sold when no interments have boon made there- 



132 Cemetery Law. 

in, or al] the bodies have been lawfully removed 
therefrom, and the consent of the corporation 
must be obtained. An heir may release to his 
co-heirs, or one joint owner to another, or the 
lot owner may reconvey to the corporation. Sec. 
49, Mem. Corp. Law. 

When the by-laws so require the consent in 
writing of the corporation should be endorsed 
on the transfer, and it should be recorded in the 
office of the corporation; and in the case of 
religious corporations, in the office of the clerk 
of the county where the cemetery is situated. 
Sec. 7, Religious Corporations Law. 



No. 8. 



Deed of a Cemetery Lot by a Cemetery 
Incorporated Under Special Law. 

Note. — Form ISTo. 6 may be used, with any 

necessary verbal changes. The special act may 

be cited in the habendum clause; an absolute 

title to the land, or an easement only may be 

conveyed, as may be agreed on, subject to the 

provisions of the act and the by-laws. 



Forms. 133 

Where the special act does not provide for a 
conveyance of the lot, some cemetery corpora- 
tions (especially Catholic cemeteries) merely 
give a receipt for the price of the lot, the effect 
of which is to confer a license only on the pur- 
chaser to make interments. 



No. 9. 



Transfer of Lot in a Cemetery Incorpo- 
rated Under a Special Law. 

Form as in No. 8 may, subject to the pro- 
visions of the act and by-laws, etc., be used. 

The consent of the Cemetery should be en- 
dorsed in writing when required, and the trans- 
fer should be recorded as required by the act 
and by-laws. 



No. 10. 

Form of Order for Interment. 

To the Superintendent of the Cemetery: 

Please open a grave in Lot Xo. , Sec. No. 
, for the remains of 



134 Cemetery Law. 

Place of birth. 

Place of death. 

Time of death. 

Married, single, widower, widow. 

Late residence, No. street. 

Age, years, months, days. 

Box or coffin. 

Size on top, feet inches long, 

inches wide. 

Funeral in in on 

the day of at 

o'clock M. 

Dated 19 . 

Undertaker. 

Informant. 

Interment, $ 

Evergreens, $ 

Grave, labor, $ 

!N". B. — This blank must be filled and location 
of grave particularly designated by diagram, or 
staked on lot 24 hours before interment. 

^Note. — jSTearly all cemetery corporations 



Forms. 135 

provide their own forms of interment orders, 
and in some cases the undertaker is held respon- 
sible for any orders given by him. It is desir- 
able, therefore, that lot. owners, undertakers and 
others interested, should provide themselves with 
copies of the rules, regulations and by-laws, so 
as to become properly acquainted with their 
rights and liabilities. Such rules, however, 
must be reasonable. 

In addition to this interment order, a permit 
for the burial must be obtained from the local 
board of health, which can only be had on the 
certificate of the physician who attended deced- 
ent, or an affidavit by some credible person. 
And in the case of Catholic cemeteries, proof is 
required, by certificate from deceased's pastor, 
or otherwise, that decedent is entitled to burial 
in the consecrated grounds of the cemetery. , 



No. 11. 



Notice of Lien on a Monument, Grave- 
stone or Cemetery Structure. 

To , the Superintendent 

of Cemetery in the 



136 Cemetery Law. 

of of 

(the person with whom agreement was 
made), and of 

(the lot owner. If latter' s name be un- 
known, omit any reference to him), and 
all other persons concerned: 
Take notice, that under Article III of the 
Lien Law (Laws 1897, ch. 418, sec. 40), I, the 
undersigned , residing at 

in the of , 

claim a lien upon a certain monument (grave- 
stone, or other cemetery structure), under the 
following circumstances : 

1. On the day of ,19 , 
I agreed with , residing at 

for the sale (and 
erection) of a monument (gravestone or ceme- 
tery structure) to he erected in the 
cemetery (or burial ground) situated at 

; or I agreed with , resid- 

ing at , for the perform- 

ance of work and labor in and about the fur- 
nishing and erection of a monument (grave- 
stone or cemetery structure), to be erected in 
Cemetery in the of 

2. That such monument, etc., is of the fol- 



Fokms. 137 

lowing description (describe monument or 
other structure). 

3. That the amount agreed to be paid to me 
by said for such (monu- 
ment, etc.) and the erection thereof (or for 
labor performed in the furnishing and erection 
of such monument) was $ 

4. That said (monument, etc.) was erected 
upon a plot in said cemetery described and 
located as follows : (Describe and give loca- 
tion of the lot). 

5. That said work was completed on the 
day of , 19 , when said price 
agreed to be paid therefor became due (or as 
the fact may be). 

6. That of such agreed price, there remains 
unpaid the sum of $ , with interest from 
the time when same became due as aforesaid. 

Dated 190 . 

(Signature.) 
State of New York, 
County of ss. : 

, being duly sworn, de- 
poses and says that he is the person named as 
lienor in and who has subscribed the foregoing 
notice; that he has read the same and knows 



138 Cemetery Law. 

its contents; that the same is true of his own 
knowledge except as to the matters therein stated 
to be alleged on information and belief, and 
that as to those he believes it to be true. 

(Signature.) 
Sworn to before me this 

day of , 19 . 

(Notary.) 



No. 12. 



Form of Devise and Bequest to a Ceme- 
tery Corporation. 

I hereby devise unto the corporation duly in- 
corporated under Article III of the Member- 
ship Corporation Law, known as 
Cemetery, the following described lands form- 
ing one continuous tract (describe them), to be 
used exclusively for the purposes of a ceme- 
tery, and also the following described lands (de- 
scribe them), for the purpose of supplying 
water for the use of said cemetery, and I au- 



.Forms. 139 

thorize said corporation to lay, relay, repair and 
maintain conduits and water pipes with con- 
nections and fixtures in, through or over my 
lands situated at (describe them), and I author- 
ize said corporation to divert the flow of waters 
from the stream bounding my lands at (de- 
scribe them), for the use of said cemetery, and 
I devise to said corporation the following de- 
scribed lands (describe them), for the purposes 
of the convenient transaction of its general busi- 
ness, no portion of which shall be used for the 
purposes of a cemetery. 

And I devise and bequeath unto the said cor- 
poration the following real and personal prop- 
erty (describe same), upon trust to use same 
or the income thereof for the purposes men- 
tioned in subds. 1, 2, 3 and 4 of sec. 45 of the 
Membership Corporation Law, and for no other 
purposes. 

And in case the amount and value of real and 
personal property so devised and bequeathed by 
me as aforesaid, should exceed what may be law- 
fully required by said corporation, I direct that 
said corporation may select from the real and 
personal estate devised as aforesaid such part 



140 Cemetery Law. 

as it may by law acquire, and I devise and be- 
queath to it the part or parts so selected for the 
purposes aforesaid. 



No. IS. 



Form of Devise or Bequest to a Corpora- 
tion Incorporated Under Special Law. 

J^ote. — Reference should be first made to 
the special law to ascertain to what extent the 
corporation may be empowered to accept de- 
vises or bequests and for what purposes, and the 
will should be prepared in accordance there- 
with. The following is a form of devise and 
bequest to a corporation organized under a 
special act: 

I devise and bequeath to St. Agnes Cemetery, 
situated in the County of Albany, State of New 
York, the following described real and per- 
sonal property (describe same), for the im- 
provement and embellishment of said cemetery, 
and of the buildings, structures and fences 



Forms. 141 

erected or to be erected upon the lands of said 
corporation (or for the other purposes mentioned 
in the fourth section of the special act of incor- 
poration, Laws 1867, ch. 853). 



No. H. 



Form of Devise or Bequest to a Religious 
Corporation Created Under the Religious 
Corporations Law. 

I devise to the (give name and location of 
corporation) the following described lands for 
the purposes of a cemetery, and I also devise 
and bequeath to it the following described real 
and personal property (describe same), upon 
trust, to apply the same or the income or pro- 
ceeds thereof, under the direction of the trus- 
tees of the corporation, for the improvement 
and embellishment of such cemetery (or any 
lot therein, including the erection, repair, pre- 
servation or removal of tombs, monuments, 
gravestones, fences, railings, or the planting or 



142 Cemetery Law. 

cultivation of trees, shrubs, plants or flowers in 
and around any such cemetery or cemetery 
lots). 



No. 15. 
Form of Devise or Bequest to a City or 
Village for Cemetery Purposes. 

I devise and bequeath to the City of 
(or the village of) the following described lands 
for cemetery purposes, to hold same in accord- 
ance with the provisions of Laws of 1870, ch, 
760 (or sec. 290 of the Village Law). 

(Add devise and bequest of property for the 
improvement of the cemetery under sec. 295.) 



No. 16. 
Form of Bequest to a Board of Trustees 
of a Town Cemetery. (Town Law, sec. 193.) 

I bequeath to the board of trustees of the 
burial ground or grounds in the town of , 

county of , the following personal 

property (describe same), for the care and im- 



Forms. 143 

provement of the cemeteries under their charge 
(or of the following lots therein, describing 
same). 



No. 17. 



Form of Devise of Bequest for Perpet- 
ual Care of a Lot. 

I devise to the Cemetery 

the following described lands (describe them), 
and I also bequeath to the said corporation the 
following described personal property (describe 
same), upon trust, to apply the income thereof 
to the perpetual care of my lot in said cemetery. 
(If desired, add details as to the manner in 
which the lot is to be cared for.) 



INDEX. 



PAGE. 

ABOLITION OF CEMETEEIES 93 

ACQUIREMENT of lands for cemeteries 20 

by conveyance 26 

by dedication 39 

by eminent domain 20 

by prescription 39 

BURIALS, generally as to 96 

expenses of 102, 105 

CEMETERIES, abolition of 93 

creation of 2 

distinction between, and churchyards. 3 

definition of 1 

desecration of 81 

highways through 3, 76 

incorporation of 8 

kinds of 4 

public 1 

cemetery associations 6 

10 145 



146 Index. 

page. 
cemeteries of religious corporations or 

churches 6 

private and family cemeteries 7 

management of 42 

nuisances, as 91 

taxation of 79 

CEMETERY PROPERTY, 

sale, mortgage or lease of 54, 55 

generally 54 

of cemetery corporations 55 

cemeteries other than rural 57 

religious corporations 57 

private and family cemeteries 58 

incorporated under special act 60 

CHURCHYARDS, interments in 1 

DEAD BODY, disposition of 102 

DEDICATION, 

cemeteries may be acquired by 39 

DESECRATION OF CEMETERIES. . 84 

EMBALMERS 96 

licensing of 100 

EMINENT DOMAIN, 

acquirement of cemeteries by 20 



IjMDEX. 147 

PAGE. 

FOEMS. 

Certificate of incorporation of a ceme- 
tery corporation for purposes of 
profit 105 

Certificate of incorporation of a ceme- 
tery corporation under Membership 
Corporation Law 113 

Certificate of incorporation of private 
cemetery corporation 116 

Certificate of incorporation of unin- 
corporated cemetery . 119 

Certificate of incorporation of a fam- 
ily cemetery 124 

Deed of a cemetery lot of a cemetery 
incorporated under the general laws 129 

Deed of a cemetery lot of a cemetery 
incorporated under special law. . . . 132 

Transfer of lot in a cemetery incor- 
porated under the general laws. . . 131 

Transfer of lot in a cemetery incor- 
porated under a special law 133 

Order for interment 133 

Notice of lien on a monument, grave- 
stone or cemetery structure 135 



14 S Index. 

page. 

Devise and bequest to a cemetery cor- 
poration 138 

Devise and bequest to a corporation 
incorporated under special law .... 140 

Devise and bequest to a religious cor- 
poration 141 

Devise or bequest to a city or village . . 142 

Bequest to board of trustees of a town 
cemetery 142 

Devise or bequest for perpetual care of 
a lot 143 

FUNERAL EXPENSES, who liable to . . 102 

priority of 105 

statutory provision as to 105 

GRAVESTONES, liens on 89 

HIGHWAYS, through cemeteries '3, 76 

INCORPORATION of cemeteries 8 

stock corporation cemeteries 8 

cemetery corporations 12 

private 14 

family 15 

unincorporated 16 

municipal 16 



Index. 149 

PAGE. 

KINDS OF CEMETERIES 4 

LEASE OF CEMETERY PROPERTY. 54 

LIENS ON CEMETERY STRUCTURES, 

89 

LOTS IN CEMETERIES, property in. . 62 

transfer of 66, 74 

dower in 74 

curtesy in 74 

MANAGEMENT OF CEMETERIES, 

generally ; . . . . 42 

of cemetery corporations 43 

of religious corporations 47 

of village cemeteries 49 

of town cemeteries 51 

of counties 51 

in certain counties. 53 

MUNICIPAL CORPORATION, 

denned 10 

MONUMENTS, 

and cemetery structures, liens on. ... 89 

MORTGAGE of cemetery property 54 



150 Index. 

page. 
NON-STOCK CEMETEET CORPOR- 
ATIONS, 

classification of 10 

controlled by religious corporations. . 10 

private cemetery corporations 10 

family cemetery corporations 10 

unincorporated cemeteries 10 

NUISANCES, cemeteries, as 91 

PRESCRIPTION, 

acquirement of cemeteries by 30 

RECORD of deaths 98, 99 

RELATIVES' right to burial 102 

duty of burial 104 

RIGHT OF BURIAL, 

of a decedent 102 

of next of kin 102 

of husband 102, 103 

of wife . 103 

of children 103, 104 

SALE OF CEMETERY PROPERTY. . 54 

TAXATION OF CEMETERIES 79 



Index. 151 

PAGE. 

UNDERTAKERS 96 

responsibility of . . . 96 

duty of, under Public Health Law. . 99 
who liable to pay bill of funeral ex- 
penses 103 

priority of bill of, for funeral ex- 
penses 105 

payment in full of bill of 105 

statutory provision as to payment of 

bill of 105 



Dec 9 1901 



DEC 4 190| 






I 



I 



